Poe, Jimmie D. v. United States ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3697
JIMMIE D. POE, SR.,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01 C 398—William D. Stiehl, Judge.
____________
ARGUED APRIL 11, 2006—DECIDED NOVEMBER 6, 2006
____________
Before FLAUM, Chief Judge, and BAUER and SYKES, Circuit
Judges.
SYKES, Circuit Judge. On June 1, 1999, the Supreme
Court held that the predicate drug law violations underly-
ing a conviction for violating the “continuing criminal
enterprise” (“CCE”) statute, 21 U.S.C. § 848(c), are elements
of the CCE offense and thus require jury unanimity with
respect to each individual violation. Richardson v. United
States, 526 U.S. 816, 824 (1999). About six weeks later,
Jimmie Poe, Sr. raised a Richardson challenge to his 1996
CCE conviction by filing a habeas corpus petition under 28
U.S.C. § 2241. This was a procedural error. Under 28 U.S.C.
§ 2255 para. 5, a habeas petition “shall not be entertained”
if the petitioner has failed to apply to his sentencing court
2 No. 04-3697
for relief under 28 U.S.C. § 2255. The district court dis-
missed the habeas petition without prejudice and redirected
Poe to § 2255. By this time, however, the applicable limita-
tions period under § 2255 had expired. When Poe filed the
appropriate § 2255 motion challenging his CCE conviction
under Richardson, the district court denied it as untimely.
We issued a certificate of appealability on the Richardson
issue and also asked the parties to address the matter of
timeliness. We now affirm. Poe’s motion was indeed un-
timely under § 2255 para. 6(3), which specifies that where
the prisoner’s claim is based on a right newly recognized by
the Supreme Court, the one-year limitations period applica-
ble to § 2255 motions runs from “the date on which the
right asserted was initially recognized by the Supreme
Court.” 28 U.S.C. § 2255 para. 6(3); Dodd v. United States,
545 U.S. 353, 358-59 (2005). Poe’s § 2255 motion was filed
more than two years after Richardson was decided. Poe
argues that his earlier but improper petition under
§ 2241—filed within the one-year limitations period—
should have been construed as a § 2255 motion rather than
dismissed, and on this basis asks us to deem his § 2255
motion timely. He also asserts that the “unique circum-
stances” doctrine should apply in this situation to allow him
to escape the operation of the statute of limitations. We
cannot accept either argument; neither finds support in
the case law.
I. Background
Poe was convicted in 1996 of five counts of distributing
marijuana or possessing it with intent to distribute (21
U.S.C. § 841(a)), two counts of attempting to possess
marijuana with intent to distribute (21 U.S.C. § 846), and
one count each of engaging in a continuing criminal enter-
prise (21 U.S.C. § 848(c)), conspiring to distribute mari-
juana (21 U.S.C. § 846), and being a felon in possession of
No. 04-3697 3
a firearm (18 U.S.C. § 922(g)). Only the CCE conviction is
at issue here. At Poe’s trial the district court instructed the
jurors that in order to find Poe guilty of violating the CCE
statute, they must find (among other things) that he was
guilty of at least two violations of 21 U.S.C. § 841(a)(1),
which prohibits distributing illegal drugs or possessing
them with intent to distribute. The court then told the jury:
“You must unanimously find that the defendant committed
at least two violations of the federal drug laws, but you do
not have to agree on which two violations.” (Emphasis
added.) Poe’s CCE conviction was affirmed on direct appeal.
The Supreme Court’s June 1, 1999 decision in Richardson
made it clear that the CCE jury instruction used at Poe’s
trial was erroneous; the district court should have required
the jury to agree unanimously on which violations of the
federal drug laws constituted Poe’s continuing criminal
enterprise. Richardson, 526 U.S. at 824. Poe sought to avail
himself of the holding announced in Richardson.1 On July
16, 1999, he petitioned the district court for the Southern
District of Illinois—the district in which he was convicted
and sentenced and also in which he was incarcerated—for
a writ of habeas corpus under § 2241. Although Poe’s § 2241
petition is not part of the record on appeal, he asserts—and
the government does not dispute—that he raised his
Richardson jury instruction argument in that petition.
The § 2241 petition was pending for more than fourteen
months before any action was taken on it. On September 19,
1
In Lanier v. United States, 220 F.3d 833, 838 (7th Cir. 2000),
this court held that Richardson error may be raised in a collateral
proceeding. Lanier held that because Richardson “simply articu-
lated the meaning of ‘continuing series of violations’ in § 848,” the
collateral retroactivity bar of Teague v. Lane, 489 U.S. 288, 305-09
(1989), did not apply. Id. (citing Bousely v. United States, 523 U.S.
614, 620 (1998)).
4 No. 04-3697
2000, the district court2 entered a summary order dismiss-
ing Poe’s habeas petition as procedurally improper. 28
U.S.C. § 2255 para. 5 (providing that a habeas peti-
tion “shall not be entertained” if the petitioner “is autho-
rized to apply for relief by motion pursuant to this section”
and “has failed to apply for relief, by motion, to the court
which sentenced him”). The dismissal was without preju-
dice, and the court’s order advised Poe that in order to
collaterally attack his federal sentence, he must file a
motion to vacate, set aside, or correct the sentence under
§ 2255, and directed the clerk to send Poe forms for filing
a § 2255 motion.
Approximately nine months later, on June 18, 2001, Poe
filed a § 2255 motion, once again raising the Richardson
challenge to his CCE conviction. He supplemented the
motion on July 27 with a legal memorandum detailing
his Richardson argument. Poe’s § 2255 motion was assigned
to his sentencing judge and remained pending for more
than twenty months before any action was taken. On March
17, 2003, the district court3 denied Poe’s § 2255 motion as
untimely. On April 1, 2003, Poe filed a motion under Rule
59(e), FED. R. CIV. P., to alter or amend the judgment.
Sixteen months later, on August 18, 2004, the district court
denied Poe’s Rule 59 motion. The district court then
declined to issue a certificate of appealability. On May 19,
2005, we granted a certificate of appealability specifically
instructing the parties to brief the Richardson jury instruc-
tion issue and also to address the timeliness of Poe’s § 2255
motion.
2
Chief Judge J. Phil Gilbert.
3
Judge William D. Stiehl.
No. 04-3697 5
II. Discussion
This appeal presents only questions of law, so we review
the district court’s denial of Poe’s § 2255 motion de novo.
Fuller v. United States, 398 F.3d 644, 647 (7th Cir. 2005).
Pursuant to the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), a one-year limitations period applies to a
federal prisoner’s collateral challenge to his conviction or
sentence by motion under § 2255. 28 U.S.C. § 2255 para. 6.
As applicable to Poe’s § 2255 motion, the one-year
period began running on “the date on which the right
asserted was initially recognized by the Supreme Court.” 28
U.S.C. § 2255 para. 6(3); Dodd, 545 U.S. at 359 (“[I]f this
Court decides a case recognizing a new right, a federal
prisoner seeking to assert that right will have one year from
this Court’s decision within which to file his § 2255 mo-
tion.”). The Supreme Court decided Richardson on June 1,
1999, so Poe had until June 1, 2000, to file a timely § 2255
motion. He missed this deadline by more than a year, filing
his § 2255 motion on June 18, 2001.
Recognizing the obvious lateness of his § 2255 motion, Poe
suggests two reasons why we should count it as timely
nonetheless. First, he argues that because his § 2241
habeas petition was the functional equivalent of a § 2255
motion, the district court should have construed it as a
timely § 2255 motion. He cites Carter v. United States, 312
F.3d 832, 833 (7th Cir. 2002), for the proposition that
“a postconviction motion that is functionally a section
2255 motion should be treated as such however it is la-
beled.”
But Carter and similar decisions that refer to this ap-
proach to postconviction motions do so in the context
of preventing federal prisoners from circumventing
AEDPA’s requirement that they obtain permission from the
court of appeals before filing a second or successive § 2255
motion. 28 U.S.C. § 2255 para. 8; Carter, 312 F.3d at 833;
6 No. 04-3697
Henderson v. United States, 264 F.3d 709, 710 (7th Cir.
2001) (noting that United States v. Evans, 224 F.3d 670 (7th
Cir. 2000), held “that a postconviction motion that is
functionally, substantively, a motion under section 2255 . . .
should be treated as such, even if labeled differently, . . . for
purposes of determining whether a subsequent section 2255
motion should be deemed a successive such motion”) (empha-
sis added). Poe cites no case from this or any other
court—and we are aware of none—that supports a rule
requiring district courts to construe equivalent post-
conviction filings as § 2255 motions in order to help prison-
ers comply with AEDPA’s one-year limitations period.4
Indeed, this court has rejected an equitable tolling
argument in this context in Nolan v. United States, 358
F.3d 480, 484-86 (7th Cir. 2004). Poe acknowledges Nolan
and says he is not arguing for equitable tolling.5 But his
argument and the one advanced in Nolan are essentially
4
Henderson and Evans also stand for the proposition that
before a district court “converts” a mislabeled but functionally
equivalent § 2255 motion, the court must notify the petitioner,
explain the “second or successive” consequences of treating the
mislabeled filing as a § 2255 motion, and give the petitioner an
opportunity to withdraw the motion. Henderson v. United States,
264 F.3d 709, 711 (7th Cir. 2001); United States v. Evans, 224
F.3d 670, 675 (7th Cir. 2000). The Supreme Court later endorsed
this approach in Castro v. United States, 540 U.S. 375 (2003).
5
Equitable tolling is “reserved for ‘[e]xtraordinary circumstances
far beyond the litigant’s control [that] . . . prevented timely fil-
ing.’ ” Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004)
(citing Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003))
(quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.
2000)). We observed in Nolan that “[e]quitable tolling of the
statute of limitations is such exceptional relief that ‘we have yet
to identify a circumstance that justifies equitable tolling in the
collateral relief context.’ ” Id. (quoting Modrowski, 322 F.3d
at 967).
No. 04-3697 7
the same regardless of doctrinal nomenclature. Nolan had
filed a motion for a new trial pursuant to Rule 33, FED. R.
CRIM. P., just before the expiration of the applicable AEDPA
limitations period. After the Rule 33 motion was denied, he
filed a § 2255 motion, which was dismissed as untimely. He
invoked equitable tolling, arguing that the Rule 33 motion
should be construed as a § 2255 motion by application of the
decisions cited above that require postconviction motions
that are substantively equivalent to § 2255 motions to be
treated as § 2255 motions—regardless of label—for pur-
poses of AEDPA’s rules governing second or successive
motions.
We rejected this argument, noting that Nolan chose to file
a Rule 33 motion, not a § 2255 motion, within AEDPA’s
limitations period. “From the point of view of timeliness (as
opposed to the ‘successive petitions’ rule), he did so at his
peril.” Id. at 484. The same is true here. There is no legal
basis for Poe to claim he was entitled to have his improper
§ 2241 petition construed as a § 2255 motion for purposes
of AEDPA’s statute of limitations. See Henderson, 264 F.3d
at 711 (“Nothing in AEDPA says that a motion not labeled
as a section 2255 motion shall nevertheless be deemed one
if it could have been so labeled accurately. . . . All we hold
today . . . is that we won’t deem a rule 33 (or other misla-
beled motion) a section 2255 motion unless the movant has
been warned about the consequences of his mistake.”).
Still, we are compelled to comment on the district
court’s apparent inattentiveness to the promptness re-
quirement of Rule 4 of the “Rules Governing Section 2254
Cases6.” Rule 4 directs district judges to “promptly” examine
incoming habeas petitions and to “dismiss the petition and
direct the clerk to notify the petitioner” if it “plainly ap-
6
Rule 1(b) of these rules allows them to be applied to other
habeas corpus petitions, such as Poe’s § 2241 petition.
8 No. 04-3697
pears . . . district court.” Poe filed his § 2241 petition less
than two months after the Supreme Court decided Richard-
son and the one-year limitations period began running. Had
the district court complied with Rule 4 and “promptly”
examined and dismissed his petition, Poe would have had
ample time to fix the problem and timely file a § 2255
motion. Rule 4 does not define “promptly,” but we are
confident a fourteen-month delay in preliminary screening
is not what the rule contemplates.7 The district court’s
neglect deprived Poe of the opportunity to correct his
mistake.
This brings us to Poe’s secondary argument, which is that
we should forgive his § 2255 motion’s untimeliness under
the doctrine of “unique circumstances.” The doctrine is a
narrow one that applies “only where a party has performed
an act which, if properly done, would postpone the deadline
for filing his appeal and has received specific assurance by
a judicial officer that his act has been properly done.”
Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989); see
also In re Bond, 254 F.3d 669, 674 (7th Cir. 2001) (empha-
sizing the doctrine’s narrowness and even questioning its
continued vitality). Poe’s case does not meet the require-
ments of the “unique circumstances” doctrine because no
judicial officer ever gave him any assurances he had
properly filed his motion for postconviction relief. The
7
The inexplicable twenty-month delay in denying Poe’s § 2255
motion as untimely also qualifies for these criticisms, see Rule 4(b)
of the “Rules Governing Section 2255 Proceedings,” as does the
sixteen-month delay in disposing of Poe’s Rule 59 motion. We have
not focused on these delays, however, as they had no
legal significance. Poe’s limitations period expired long before
he filed his § 2255 motion, so the twenty-month lag between
motion and disposition did not contribute to the motion’s untimeli-
ness. The same is true of the sixteen months it took the district
court to decide Poe’s Rule 59 motion.
No. 04-3697 9
September 19, 2000 order dismissing his § 2241 petition
told him quite the opposite—that he had filed his petition
incorrectly and would have to try again. The doctrine of
“unique circumstances” does not apply here; the district
court properly dismissed Poe’s § 2255 motion as untimely.8
AFFIRMED.
8
Had it been timely, Poe’s § 2255 motion would have run up
against this circuit’s case law holding Richardson error to be
harmless where the jury unanimously convicted the defendant
of two or more separate drug offenses along with the CCE offense.
United States v. Wilson, 237 F.3d 827, 833-34 (7th Cir. 2001)
(“Because the jury unanimously agreed that each defendant had
committed two of the predicate offenses with which he was
charged[,] . . . the omission of the instruction was harmless error
and the CCE convictions stand.”); United States v. Jackson, 207
F.3d 910, 919 (7th Cir. 2000) (omission of unanimity instruction
on CCE count was harmless error where jury unanimously
convicted defendant on three predicate offenses). Poe was
separately convicted of five felony counts of distributing mari-
juana or possessing marijuana with intent to distribute.
10 No. 04-3697
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-6-06