Cotton v. United States ( 2020 )

UNITED, STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION TORRANCE L. COTTON, ) Movant, Vv. | No. 4:19-CV-812-JAR UNITED STATES OF AMERICA, Respondent. MEMORANDUM AND ORDER This matter is before the cout on self-represented movant Torrance L. Cotton’s motion for certificate of appealability (“COA”), The government has not responded to the motion and the time for doing so has passed. For we following reasons, movant’s motion will be denied. Background On March 28, 2019, movant pues a motion for leave to file a motion to vacate, set aside, or correct sentence under 28 US.C.'§ 2255. In his motion, movant acknowledged his § 2255 motion was untimely, but sought to wee equitable tolling applied to the AEDPA’s one-year statute of limitations. The government seeped the motion. On June 25, 2020, the Court lexi movant’s motion. The Court found the motion to be more than sixteen months late. Movs sought to have this delay excused because he was relying on the advice of “an experienced ations ... who has since been incarcerated.” In actuality, this “experienced attorney” was a paralegal who had requested that Mr. Cotton “sign on with attorney Michael Gunter, with Raw Law, ww as legal counsel in all post conviction remedy procedures before the court.” As early as April , 2017, Mr. Cotton was told the filing deadline for his § 2255 motion was November 29, 2017. Based on his filings, it appears Mr. Cotton never signed on with attorney Michael Gunter. Additionally, Mr. Cotton had no communication with this paralegal after September 26, 2017, despite understanding the deadline filing his § 2255 motion was November 29, 2017. Based on his last communication with the paralegal, Mr. Cotton understood that his § 2255 motion was not complete. The Court found movant was entitled to equitable tolling because he did not show that he had pursued his rights stigemty o that any extraordinary circumstance beyond his control prevented timely filing. First, movan did nothing with respect to is § 2255 motion from September 2017 to March 2019, despite being fully aware of the filing deadline. Also, the Court found movant’s reliance on the paralegal was not an extraordinary circumstance beyond movant’s control. Even assuming movant was reasonable in his belief that the paralegal was an attorney, the Court found this still would not aly as an “extraordinary circumstance warranting equitable tolling.” ECF No. 7 (citing cases). | On July 26, 2020, movant led a motion to alter, correct, and reconsider the Court’s Memorandum and Order dated June 2020. The government did not oppose the motion to the extent that movant sought to correct | one-sentence clerical error in the Memorandum and Order, but opposed the motion in all other respects. On August 12, 2020, the Court granted movant’s motion to the extent it sought to sonlect the one-sentence clerical error regarding drug quantities in the Memorandum and Order sate June 25, 2020. The Court denied the motion in all other respects, specifically to the extent movant sought to alter, correct, or reconsider the Court’s finding that movant’s motion for leave to al his § 2255 motion was untimely. On August 12, 2020, the : Court issued an Amended Memorandum and Order correcting the clerical error in the Memorandum and Order dated June \. See ECF Nos. 10 and 11. On August 24, 2020, ms filed a motion to recall the mandate or correct its decision. Movant argued that the Court granted movant’s motion to alter, correct, and reconsider the Court’s Memorandum and Order dated June|25, 2020 and issued its Amended Memorandum and Order dated August 12, 2020 without giving him the benefit of filing a reply brief in support of the motion. The Court denied movant’s motion to alter, correct, or reconsider, stating that the proposed reply brief did not alter the Coutts analysis of movant’s timeliness argument. Now movant has filed the tan request for a COA. He seeks “permission to appeal matters in regards to his Brief in Support of the Petition for Habeas Corpus and his Rule 59 motion to alter and correct and reconsider.” ! Discussion The Court dismissed movant's § 2255 motion based on the procedural ground that it was untimely and that equitable tolling ‘ls not apply. The Supreme Court has held that if the district court dismisses a § 2255 motion based on procedural grounds without reaching the prisoner’s underlying constitutional claim, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of pesson would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court finds movant has not shown that reasonable jurists would find it debatable whether the Court was correct in its procedural ruling, and mhereford will not issue a COA. ~ For purposes of movant’s motion for a COA, the Court will focus only on the second requirement to issue a COA when wy § 2255 motion was denied solely on procedural grounds— “that jurists of reason would find it scab whether the district court was correct in its procedural ruling.” Jd. In his motion, movant argues that his claim of ineffective assistance of counsel is not subject to a procedural bar. Thus, wd states, he should be allowed to bring it at any time without regard to the AEDPA’s one-year site of limitations. For support, movant cites three Supreme Court cases: Massaro v. United □□ 538 U.S. 500, 504 (2003), Martinez v. Ryan, 566 U.S. 1 (2012), and Johnson v. Zerbst, 304 U's. 458 (1938). (Pl’s Mot. at 2). These Supreme Court cases do not support movant’s contention be an ineffective assistance of counsel claim may be brought at any time. The Massaro case nerey holds that an otherwise timely § 2255 motion may raise an ineffective assistance of counsel sei regardless of whether the movant had raised the claim on direct appeal. See Massaro, 538 ok at 509 (“We do hold that failure to raise an ineffective- assistance-of-counsel claim on sired appeal does not bar the claim from being brought in a later, appropriate proceeding under § 225 1 (emphasis added). The Martinez case holds that a federal district court may excuse procedural eat of an ineffective assistance claim when the claim was not properly presented in the state aber due to attorney’s errors in state initial-review collateral proceeding. Martinez, 566 U.S. at The Johnson case predates Gideon v. Wainwright, 372 U.S. 335 (1963), and addresses whether _ defendants are entitled to attorneys. Johnson, 304 USS. at 459. As stated in the Court’s Memorandum and Order dated June 25, 2020, and amended by the Amended Memorandum and Order dated August 12, 2020, movant’s sixteen-month delay in filing his § 2255 motion is not subject to salable tolling. Mr. Cotton did not pursue his rights diligently | 4 when he knew the deadline for filing his §2255 motion; did not communicate with his supposed paralegal regarding the filing for se months prior to the deadline, knowing that the motion and memorandum were not ready for atin and waited sixteen months to seek leave to file an untimely § 2255 motion. Additionally, Mr. donon’s unreasonable reliance on a self-professed paralegal does not constitute an extraordinary | veumstanee beyond a movant’s control. Even if movant had reasonably relied upon a licensed ns an attorney’s conduct of missing a filing deadline would not qualify as an a circumstance” warranting equitable tolling. See ECF No. 1124-9, Because movant has not shown that jurists of reason would find it debatable whether the district court was correct in its vroledua ruling, the Court will deny movant’s motion for a certificate of appealability. Accordingly, IT IS HEREBY ORDERED that movant’s motion for a certificate of appealability is DENIED. [ECF No. 16] Dated this 18" day of December, 2020. fhe D STATES DISTRICT JUDGE os