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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17231
Non-Argument Calendar
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D.C. Docket Nos. 8:16-cv-02888-EAK-TBM; 8:13-cr-00136-EAK-TBM-1
JOSEPH DANIELE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 3, 2018)
Before MARTIN, JILL PRYOR and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Movant Joseph Daniele, a federal prisoner proceeding pro se, appeals the
district court’s denial of his motion to vacate, set aside, or correct sentence filed
pursuant to
28 U.S.C. § 2255. In support of his motion to vacate, Daniele argues
that the district court committed error under Clisby v. Jones,
960 F.2d 925 (11th
Cir. 1992) (en banc), by failing to address his claim that he was entitled to
equitable tolling based on the alleged actions of his attorney with respect to the
filing of a motion for sentence reduction under Federal Rule of Criminal Procedure
35. After careful review, we vacate and remand for the district court to address
Daniele’s equitable-tolling claim.
I. BACKGROUND
In March 2013, Daniele was charged in a one-count information with
conspiracy to commit wire fraud affecting a financial institution, in violation of
18
U.S.C. §§ 1343, 1349. Daniele waived issuance of the indictment and pled guilty
pursuant to a written plea agreement. The district court sentenced Daniele to 121
months’ imprisonment. The final judgment was entered on July 10, 2014. Daniele
did not file a direct appeal.
Nearly two years later, in May 2016, Daniel filed a motion in the district
court, seeking to compel his former attorneys to provide him with his entire
criminal file, including proffer statements that he made prior to entering a guilty
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plea. He requested this material in order to file a § 2255 motion based on
ineffective assistance of counsel. He also requested appointment of counsel.
After holding a telephonic hearing to address Daniele’s motion to compel, a
magistrate judge granted the motion in part and denied it in part. Specifically, the
magistrate judge denied Daniele’s request for counsel, but ordered his counsel to
mail Daniele his file within 25 days of receiving adequate funds to pay for the
shipping of the materials.
On October 11, 2016, Daniele filed the § 2255 motion to vacate that is the
subject of this appeal. Defendant raised several claims, including actual
innocence, prosecutorial misconduct, and ineffective assistance of counsel. He
asserted that his § 2255 motion was timely under § 2255(f)(2) and (f)(4).
According to Daniele, his counsel and the Government conceded that he had
repeatedly requested the complete contents of his criminal file so that he could file
a timely § 2255 motion if the Government did not file a motion for sentence
reduction under Federal Rule of Criminal Procedure 35.1 Daniele argued that the
one-year statute of limitations began to run on September 7, 2016, when his
counsel admitted in a recorded phone call that he was ineffective because he never
possessed the charging information nor reviewed the statements Daniele provided
1
Federal Rule of Criminal Procedure 35 provides that “[u]pon the government’s motion made
within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing,
provided substantial assistance in investigating or prosecuting another person.” Fed. R. Crim. P.
35(b).
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during the proffer session with the Government. Daniele also argued that he was
actually innocent.
In an affidavit attached to his § 2255 motion, Daniele argued that his counsel
and the Government conspired to deny him access to his criminal file in order to
prevent him from timely filing a § 2255 motion. He further asserted that his
attorney and the Government lied to him about filing a Rule 35(b) motion to
distract him from filing a § 2255 motion. He explained that as the deadline for
filing a § 2255 motion approached, he inquired with his counsel about the status of
the Rule 35(b) and his counsel assured him that the motion would be filed and that
he just needed to be patient.
Daniele also attached other documents to his § 2255 motion, including a
letter to the Assistant United States Attorney dated March 30, 2016, in which he
inquired about the status of a Rule 35(b) motion being filed on his behalf and
requested assistance with obtaining his criminal file so that he “may file a timely
2255 motion claiming ineffective assistance of counsel.” Additionally, Daniele
attached several emails he sent to his attorney where he inquired about the status of
the Rule 35(b) motion and expressed concern about missing the § 2255 deadline.
In one email dated February 1, 2016, he states: “You have told me for a year now
that you are just waiting to hear from the AUSA . . . but that is putting me in
jeopardy with filing a motion for me within the timelines.”
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Before the Government was served with Daniele’s § 2255 motion, the
district court sua sponte dismissed it as time-barred. The court determined that
because Daniele did not file a direct appeal, he had until July 11, 2015,2 to file a
timely § 2255 motion. The court acknowledged that Daniele had attempted to
secure documents from his criminal case but noted that a defendant is able to file a
§ 2255 motion without a complete record. Daniele therefore could not claim that
his failure to obtain his case file resulted in the untimely filing of his § 2255
motion and that he was entitled to equitable tolling.
Daniele moved for reconsideration. He asserted that the district court did
not address his claims that his motion was timely under § 2255(f)(2) or (f)(4), that
he was entitled to equitable tolling, or his claim that he was qualified for the actual
innocence exception. Of relevance, he argued that he had shown that extraordinary
circumstances prevented him from timely filing a § 2255 motion, despite his
diligence because the Government suppressed his case file and because his trial
counsel deceived him into believing that the Government would file a Rule 35(b)
2
The district court appears to have incorrectly calculated the date Daniele’s conviction and
sentence became final. Because judgment was entered on July 10, 2014, and Daniele did not file
a direct appeal, his sentence became final on July 24, 2015. See Adams v. United States,
173
F.3d 1339, 1342 n.2 (11th Cir. 1999) (explaining that a conviction becomes final when the time
for filing a direct appeal expires); see also Fed. R. App. P. 4(b)(1)(A) (providing that a direct
appeal must be filed within 14 days of the judgment being entered). The one-year statute of
limitations expired on July 24, 2015, not July 11, 2015, as calculated by the district court. See
28
U.S.C. § 2255(f) (providing for a one-year limitation period for the filing of a § 2255 motion).
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motion. The district court denied Daniele’s motion for reconsideration, citing the
same reasons it had for denying his § 2255 motion.
Daniele subsequently filed a notice of appeal from the district court’s order
denying his § 2255 motion. A member of this Court granted Daniele a certificate
of appealability on the following issues:
(1) Whether the district court violated Clisby v. Jones,
960 F.2d 925,
939 (11th Cir. 1992) (en banc), by failing to address Mr. Daniele’s
argument that he was entitled to equitable tolling based on his
attorney’s actions; and
(2) Whether the district court properly dismissed Mr. Daniele’s
28
U.S.C. § 2255 motion as time-barred.
II. DISCUSSION
We review de novo the district court’s dismissal of a motion to vacate under
§ 2255 as time-barred. Boyd v. United States,
754 F.3d 1298, 1301 (11th Cir.
2014).
In Clisby, we held in the context of a habeas corpus petition filed pursuant to
28 U.S.C. § 2254, that a district court must resolve all claims for relief raised by a
habeas petitioner, regardless of whether the district court grants or denies relief.
See Clisby,
960 F.2d at 936. In other words, we held that if a district court fails to
address all claims raised by a petitioner, we “will vacate the district court’s
judgment without prejudice and remand the case for consideration of all remaining
claims.”
Id. at 938. We have since determined that the principles announced in
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Clisby apply with full force to claims raised in a § 2255 motion. See Rhode v.
United States,
583 F.3d 1289, 1291 (11th Cir. 2009); see also Gay v. United States,
816 F.2d 614, 616 n.1 (11th Cir. 1987) (“[T]he principles developed in habeas
cases also apply to § 2255 motions.”).
In Long v. United States, we applied Clisby to a district court’s dismissal of
a § 2255 motion as time-barred, concluding that the district court must resolve all
claims a petitioner raises for tolling of the limitations period.
626 F.3d 1167, 1170
(11th Cir. 2010) (holding that the district court violated Clisby by failing to address
the petitioner’s argument that he was entitled to statutory tolling). In doing so, we
emphasized the importance on district courts to “create a record that will facilitate
meaningful appellate review of the correctness of the procedural ruling.”
Id.
Here, the district court failed to address Daniele’s claim that he was entitled
to equitable tolling based on his counsel’s alleged actions concerning whether a
Rule 35(b) motion would be filed on his behalf. 3 In his § 2255 motion and
supporting affidavit, Daniele asserted that: (1) he had been in contact with the
Government and his counsel to inquire about the status of a Rule 35(b) motion
3
The Government argues that Daniele abandoned the Clisby issue on appeal. In his appellate
brief, Daniele lists the equitable-tolling claim in a section heading and asserts that the district
court did not address the underlying merits of his claim that his attorney prevented him from
filing a timely § 2255 motion by making misrepresentations about the Rule 35 motion.
Admittedly, Daniele could have more artfully presented his argument that the district court
violated Clisby by failing to address his equitable-tolling claim. However, liberally construing
his brief, we conclude that he sufficiently raised this argument on appeal. See Lorisme v. I.N.S.,
129 F.3d 1441, 1444 n.3 (11th Cir. 1997) (“We read liberally briefs filed pro se.”).
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being filed on his behalf; (2) his counsel and the Government had lied to him about
filing a Rule 35(b) motion in order to prevent him from filing a timely § 2255
motion; and (3) as the deadline for filing a § 2255 motion approached, his counsel
assured him that a Rule 35(b) motion would be filed and that he needed to be
patient. Daniele also attached a letter he wrote to the Government and several
emails to his counsel, in which he expressed concern about whether a Rule 35(b)
motion would be filed on his behalf before the deadline for filing a § 2255 motion.
Although Daniele did not explicitly state that he was raising an equitable-
tolling argument with respect to the Rule 35(b) motion, we have held that pro se
“pleadings are held to a less stringent standard than pleadings drafted by attorneys
and will, therefore, be liberally construed.” Tannenbaum v. United States,
148
F.3d 1262, 1263 (11th Cir. 1998). Nevertheless, we have stated that a pro se
litigant must “present a claim in clear and simple language such that the district
court may not misunderstand it.” Dupree v. Warden,
715 F.3d 1295, 1299 (11th
Cir. 2013) (addressing Clisby error with respect to a § 2254 habeas corpus
petition).
Construing his § 2255 motion and supporting documentation liberally,
Daniele essentially argued that despite his diligence, his counsel’s actions
prevented him from filing a timely § 2255 motion. See Pace v. DiGuglielmo,
544
U.S. 408, 418 (2005) (“[A] litigant seeking equitable tolling bears the burden of
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establishing two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.”). Daniele’s § 2255
motion and affidavit were also only 21 pages long. And the correspondence he
attached to his motion reflected his concern regarding the status of the Rule 35(b)
motion and the impending § 2255 motion deadline. In short, Daniele’s statements
regarding his counsel’s purported actions with respect to the Rule 35(b) motion
presented the equitable-tolling claim in a way that the district court could
understand it. See Rhode,
583 F.3d 1289 (concluding that a § 2255 movant
sufficiently raised a claim where he stated in his § 2255 motion that his ineffective-
assistance-of-counsel claim was set forth an attached memorandum and the
attached memorandum explained his counsel’s actions); see also Dupree, 715 F.3d
at 1299 (concluding that two sentences within a 15-page supporting memoranda of
law were sufficient to raise an ineffective-assistance-of-counsel claim, where the
petitioner stated in his habeas petition that his ineffective-assistance claims were
raised in his supporting memoranda of law).
To be clear, the district court considered and denied Daniele’s claim that he
was entitled to equitable tolling based on his inability to obtain his case file from
his counsel. The Government asserts that the district court satisfied Clisby by
addressing this equitable-tolling argument. We disagree. Daniele’s claim that he
is entitled to equitable tolling based on his counsel’s misrepresentations as to the
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filing of a Rule 35(b) motion is distinct from his claim that he was entitled to
equitable tolling based on his inability to obtain his case file. See Rhode,
583 F.3d
at 1292 (concluding that a district court violated Clisby by failing to address a
claim that counsel was ineffective for not filing a motion to withdraw a guilty plea,
even though the court addressed the claim that counsel was ineffective for failing
to investigate and prepare a defense). Because the district court did not address
Daniele’s claim that he was entitled to equitable tolling based on his counsel’s
purported actions with respect to the filing of a Rule 35(b) motion on his behalf,
the district court violated Clisby. See Clisby,
960 F.2d at 936. Accordingly, we
vacate the judgment without prejudice and remand the case to the district court to
consider this claim.
VACATED AND REMANDED. 4
4
Given our decision to remand based on the Clisby error, we need not consider the second issue
presented in the certificate of appealability.
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