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Rico-Villalobos v. United States

United States District Court, N.D. Iowa, Central Division

April 9, 2018




         This matter is before the court on the movant's 28 U.S.C. § 2255 motion (docket no. 1). Movant filed his motion on January 8, 2018. Also before the court are movant's application to proceed in forma pauperis (docket no. 2) and pro se petition for a writ of coram nobis (docket no. 3).[1]

         As an initial matter, there is no filing fee for a motion pursuant to 28 U.S.C. § 2255 and the court anticipates few, if any, fees associated with the prosecution of movant's § 2255 action. Accordingly, movant's application to proceed in forma pauperis (docket no. 2) is denied as moot. If movant does incur expenses at a latter point in this case, he may renew his motion.

         Rule 4(b) of the Rules Governing Section 2255 Proceedings requires the court to conduct an initial review of the motion. Under that rule, summary dismissal is appropriate where the allegations are vague or conclusory, palpably incredible, or patently frivolous or false. See Blackledge v. Allison, 431 U.S. 63, 75-76 (1977). According to 28 U.S.C. § 2255(f), a 1-year limitations period shall apply to motions filed under 28 U.S.C. § 2255. See, e.g. Taylor v. United States, 792 F.3d 865, 869 (8th Cir. 2015). The limitation period shall run from the latest of (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). This is a strict standard with only a very narrow exception. As set out by the Eighth Circuit Court of Appeals:

the Antiterrorism and Effective Death Penalty Act of 1996 imposed, among other things, a one-year statute of limitations on motions by prisoners under section 2255 seeking to modify, vacate, or correct their federal sentences. See Johnson v. United States, 544 U.S. 295, 299, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005). The one-year statute of limitation may be equitably tolled “only if [the movant] shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)) (applicable to section 2254 petitions); see also United States v. Martin, 408 F.3d 1089, 1093 (8th Cir.2005) (applying same rule to section 2255 motions).

Muhammad v. United States, 735 F.3d 812, 815 (8th Cir. 2013). Movant pled guilty to one count related to the distribution of methamphetamine on August 5, 2013. (See CR13-3014-LRR, docket no. 30). On December 9, 2013, the court sentenced movant to 87 months incarceration. (See CR13-3014-LRR, docket no. 43). Movant did not appeal. On April 17, 2015, this court lowered movant's sentence to 57 months incarceration pursuant to the All Drugs Minus-Two Guideline Amendment. (See CR13-3014-LRR, docket no. 48). Movant did not appeal.

         Based on the date movant's conviction became final (sometime in early 2014), his motion, filed on January 8, 2018, was beyond the one-year statute of limitations set out in 28 U.S.C. § 2255(f)(1). However, movant alleges that ineffective assistance of counsel tainted his guilty plea pursuant to the rational recognized in Lee v. United States, U.S., 137 S.Ct. 1958, 1969 (2017). (See docket no. 3). Assuming, without deciding, that movant's motion is premised on a new constitutional rule, his motion would be filed within the one-year limitation period articulated in 28 U.S.C. § 2255(f)(3) because it was filed less than a year after Lee was decided. Because it is possible that movant's motion is timely filed pursuant 28 U.S.C. § 2255(f)(3), the court will order the case briefed.[2]

         The parties are DIRECTED to respond in the following manner:

1. The government is DIRECTED to file a brief in response to the movant's amended § 2255 motion on or before July 23, 2018. The government may attach relevant materials to its brief.
2. If he so chooses, the movant is DIRECTED to file a brief in reply to the government's response and/or additional materials related to § 2255 motion on or before August 23, 2018.

         The movant raises at least one claim of ineffective assistance of counsel. A claim of ineffective assistance of counsel waives the attorney-client privilege as to communications with the attorney that are necessary to prove or disprove the claim. See Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) (“When a client calls into public question the competence of his attorney, the privilege is waived.”); see also United Statesv. Pinson, 584 F.3d 972, 978 (10th Cir. 2009) (citing Tasby, 504 F.2d at 336); United States v. Davis, 583 F.3d 1081, 1090 (8th Cir. 2009) (making clear that attorney-client privilege cannot be used as both a sword and a shield); In re Lott, 424 F.3d 446, 453 (6th Cir. 2005) (citing Tasby, 504 F.2d at 336); Bittaker v. Woodford, 331 F.3d 715, 720 (9th Cir. 2003) (addressing scope of waiver); United States v. Ballard, 779 F.2d 287, 292 (5th Cir. 1986) (permitting an attorney to reveal otherwise privileged communications when defending himself against charges of improper conduct); Schwimmer v. United States, 232 F.2d 855, 863 (8th Cir. 1956) (indicating that waiver may be express or implied).

         Therefore, counsel whose representation is challenged is DIRECTED to file with the court an affidavit that responds only to the movant's specific allegation(s) of ineffective assistance of counsel. Such affidavit must contain all of the information that counsel reasonably believes is necessary to respond to the movant's specific allegation(s). In addition, counsel is DIRECTED to attach to, or include with, his or her affidavit all of the documents that he or she reasonably believes are necessary to respond to the movant's allegation(s). This court-supervised response to the movant's allegation(s) must be filed with the court on or before June 23, 2018. The clerk of court is DIRECTED to provide a copy of this order to the movant's former counsel.[3] After counsel complies with the court's directives, the clerk's office is DIRECTED to serve both parties with a copy of the documents that counsel files. If the movant objects to counsel responding as ordered herein, the movant is DIRECTED to notify the court of the objection and the basis for the objection by May 9, 2018. Upon receipt of an objection by the movant, the court will notify the parties and counsel that they need not take further action until they are directed to do so by the court.

         Finally, after considering the issues raised in movant's motion, the court concludes that the appointment of counsel is appropriate. See 28 U.S.C. § 2255(g). The clerk of court is direct to appoint counsel to represent movant in this matter. If appointed counsel deems it appropriate, appointed counsel may file an amended or substituting § 2255 motion by May 9, 2018.

         IT IS ...

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