United States District Court, N.D. Iowa, Central Division
R. READE JUDGE
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.
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.
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.
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
parties are DIRECTED to respond in the
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.
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).
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. 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.
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.