Lucas v. United States

522 F. App'x 556
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 17, 2013
DocketNo. 12-15804
StatusPublished
Cited by1 cases

This text of 522 F. App'x 556 (Lucas v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lucas v. United States, 522 F. App'x 556 (11th Cir. 2013).

Opinion

PER CURIAM:

Bernard Lucas, a federal prisoner proceeding through counsel, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence as untimely. For the reasons set forth below, we affirm the denial of Lucas’s § 2255 motion.

I.

On July 28, 2011, Lucas, who is serving a 188-month sentence after pleading guilty to possession with intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a), signed a pro se § 2255 motion to vacate his sentence. Lucas claimed, inter alia, that his trial counsel provided ineffective assistance by disregarding Lucas’s instruction to timely file a notice of appeal of his criminal judgment. The court appointed counsel for Lucas and scheduled an evidentiary hearing before a magistrate judge.

At the evidentiary hearing, Lucas testified that, at sentencing in 2007, he told his trial counsel, Miguel Caridad, that he wanted to appeal. Caridad informed Lucas that he had waived his rights and that Lucas could not do anything. Because of Caridad’s statement, Lucas believed that he could do nothing more, and thus, he “just left it at that.” Four or five days after sentencing, Lucas called Caridad’s cell phone and asked Caridad whether they could do anything. Caridad again informed Lucas that he had waived his rights and that they could do nothing else. Lucas testified that, in 2011, he took a legal research class in prison and discovered that he had a right to appeal. Lucas filed his motion with the court within a year of his discovery of his right to appeal. The transcript of Lucas’s sentencing hearing showed that, after the court sentenced Lucas, it informed him that he had a right to appeal the sentence imposed and that any notice must be filed within ten days after the entry of judgment.

The magistrate determined that Lucas had until June 7, 2008, to timely file his motion to vacate his sentence. Because his motion was filed in 2011, his motion was untimely. The magistrate determined that equitable tolling was not warranted because Lucas was not diligent in pursuing [558]*558his claim concerning his ineffective-assistance claim regarding a direct appeal (“claim 1”). Lucas also had not shown that extraordinary circumstances beyond his control precluded him from filing a timely motion to vacate. Thus, the magistrate recommended that Lucas’s motion to vacate be denied as untimely.

Over Lucas’s objections, the district court agreed with the magistrate that equitable tolling was inappropriate. The court determined that, although serious attorney misconduct may constitute an extraordinary circumstance justifying equitable tolling, Caridad’s actions did not constitute such. Additionally, even assuming that Caridad gave Lucas incorrect advice about his right to file a direct appeal, this did not prevent Lucas from timely filing a § 2255 motion. The court also determined that Lucas’s failure to timely file a § 2255 motion due to Caridad’s erroneous advice was avoidable with due diligence. Moreover, the district court had informed Lucas of his right to appeal at the sentencing hearing, and after receiving inconsistent information from Caridad, Lucas only asked Caridad about his right to appeal twice. Accordingly, the court denied Lucas’s motion to vacate his sentence. The court granted a certificate of appealability (“COA”) as to “claim 1 (as numbered in [the magistrate’s] Report).”

II.

On appeal, Lucas argues that the district court erred in failing to find that equitable tolling applied, such that his § 2255 motion was timely filed. He asserts that Caridad’s erroneous advice— that Lucas had no right to file a direct appeal — is an exceptional circumstance warranting equitable tolling. Lucas also argues that the court erred in finding that he failed to act with due diligence. Lucas asserts that his motion is timely because he filed it within one year of discovering that Caridad had misadvised him concerning his right to directly appeal, and the time before that discovery should be tolled. Alternatively, Lucas argues that the Suspension Clause provides an additional constitutional basis for allowing the tolling of his motion and cites Gilbert v. United States, 640 F.3d 1293 (11th Cir.2011) (en banc), cert. denied, — U.S. -, 132 S.Ct. 1001, 181 L.Ed.2d 743 (2012), in support.

We review a district court’s denial of equitable tolling de novo and its factual determinations for clear error. Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir.2002). We assume that the COA encompasses any procedural claim that must be addressed on appeal before addressing the merits of a constitutional claim. McCoy v. United States, 266 F.3d 1245, 1248 n. 2 (11th Cir.2001).

A prisoner whose conviction is final, but believes that his sentence was imposed in violation of the Constitution or federal law, may seek relief from his sentence by filing a motion under § 2255 with the court that imposed his sentence. 28 U.S.C. § 2255(a). The Antiterrorism and Effective Death Penalty Act of 1996 imposes a one-year statute of limitations for filing a § 2255 motion, which begins to run following the latest of four possible events, including, under § 2255(f)(1), “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f). Pro se litigants are deemed to know of the one-year statute of limitations for filing § 2255 motions. Outler v. United States, 485 F.3d 1273, 1283 n. 4 (11th Cir.2007).

If a prisoner attempts to file outside this limitations period, a district court may still review his motion if he is entitled to equitable tolling. San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir.), cert. denied, - U.S. -, 132 S.Ct. 158, 181 [559]*559L.Ed.2d 73 (2011).1 Equitable tolling is a rare and extraordinary remedy. Id. at 1271. A court’s equitable powers must be exercised on a case-by-case basis. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2563, 177 L.Ed.2d 130 (2010). Equitable tolling is available if the prisoner demonstrates that (1) he has pursued his rights diligently and (2) an extraordinary circumstance prevented him from timely exercising his rights. Id. at -, 130 S.Ct. at 2562. Equitable tolling is available only where a movant untimely files his motion due to extraordinary circumstances that are beyond his control. Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.2009). There must be a causal connection between the alleged extraordinary circumstances and the late filing of the motion. San Martin, 633 F.3d at 1267.

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Bluebook (online)
522 F. App'x 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucas-v-united-states-ca11-2013.