508 F. App'x 69
2d Cir.2013Background
- In 2003, Darby pled guilty to distribution of and possession with intent to distribute about 180 grams of crack cocaine and was sentenced to 262 months.
- Plea agreement included a career offender enhancement under § 4B1.1(a) based in part on two prior controlled substance offenses, including a 1993 NC conspiracy to traffic cocaine.
- Darby reserved the right to seek an adjusted Guidelines range but agreed not to appeal or collaterally attack any sentence within or below the stipulated 262–327 month range.
- Darby appealed in a direct appeal, but counsel filed a no-merits brief under Anders; government moved for dismissal or summary affirmance, which the court granted.
- On June 27, 2011, Darby filed a pro se § 2255 motion challenging the career offender enhancement as applied to his sentence, arguing the NC conviction was not a controlled substance offense.
- The district court dismissed the § 2255 motion as untimely under 28 U.S.C. § 2255(f); on appeal, Darby asserted ineffective assistance and actual innocence, and argued waiver should excuse the untimeliness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 2255 motion is timely | Darby | Government | Untimely; motion dismissed |
| Whether the actual innocence exception applies | Darby asserts actual innocence of the career offender enhancement | Government contends actual innocence does not apply to a legal, not factual, claim | Does not apply; exception is very narrow |
| Whether ineffective assistance of counsel excuses the untimeliness | Darby argues trial counsel was deficient and prejudiced him | Government contends no prejudice from any such deficiency at the time | Not sufficient to excuse untimeliness |
| Whether the plea waiver of collateral attack precludes § 2255 | Waiver should bar § 2255 challenges | Waiver is effective, but even if excused, the motion remains untimely | Waiver could be excused in theory, but the motion remains untimely and is dismissed |
Key Cases Cited
- Sawyer v. Whitley, 505 F.3d 333 (U.S. Supreme Court (1992)) (actual innocence exception is narrow and focuses on actual innocence)
- Poindexter v. Nash, 333 F.3d 372 (2d Cir. 2003) (actual innocence exception does not apply to legal arguments)
- Spence v. Superintendent, 219 F.3d 162 (2d Cir. 2000) (limited situation where actual innocence of enhanced sentence may apply)
- Harrington v. United States, 689 F.3d 124 (2d Cir. 2012) (Strickland standard for ineffective assistance with strong presumption of reasonable conduct)
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court (1984)) (establishes standard for deficient performance and prejudice)
- United States v. Madera-Madera, 333 F.3d 1228 (11th Cir. 2003) (discussion of inference of intent under categorical approach)
- United States v. Montanez, 442 F.3d 485 (6th Cir. 2006) (differences in statutory schemes affect categorization of offenses)
- United States v. Herrera-Roldan, 414 F.3d 1238 (10th Cir. 2005) (distinguishes Madera-Madera for different statutory scheme)
- United States v. Brandon, 247 F.3d 186 (4th Cir. 2001) (considerations of amount of drugs and possession versus distribution)
- United States v. Villa-Lara, 451 F.3d 963 (9th Cir. 2006) ( Ninth Circuit decision cited by Darby on direct appeal)