Harper v. United States, 3:21-cv-00707

Harper pleaded guilty April 19, 2019 to conspiracy to distribute ≥500 grams of cocaine; the government filed a §851 notice exposing him to a 10‑year mandatory minimum.
On July 29, 2019 the court sentenced Harper to 144 months imprisonment and 8 years supervised release.
Harper filed a §2255 motion on November 5, 2021 alleging ineffective assistance of counsel for (1) failing to challenge the §851 enhancement and (2) failing to file a timely appeal.
Harper conceded his §2255 filing was untimely under §2255(f)(1) and sought equitable tolling based on transfers among jails and COVID‑19 lockdowns/quarantine (including placement at FCI‑Gilmer with limited law‑library access).
The court found Harper did not show he exercised due diligence or made concrete efforts to file within the limitations period (noting he had other filings in late 2020), so equitable tolling was not warranted.
The court dismissed the §2255 petition as untimely, denied equitable tolling, and declined to issue a certificate of appealability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Equitable tolling of §2255 one‑year statute of limitations	Harper: transfers between jails and COVID‑19 quarantine at FCI‑Gilmer prevented timely preparation/access to legal materials	Government: Harper failed to show diligence or specific thwarted attempts; record shows he filed other motions in 2020	Denied — Harper failed both diligence and extraordinary‑circumstances showing; petition untimely and dismissed
Ineffective assistance claims (failure to challenge §851; failure to file appeal)	Harper: counsel was ineffective for not challenging §851 and not filing appeal	Government: merits not reached in brief because petition untimely; procedural defense forecloses relief	Not reached on the merits — claims dismissed as procedurally barred by untimeliness
Certificate of appealability (COA)	Harper: appellate review should be allowed	Government: reasonable jurists would not find the court’s procedural ruling debatable	Denied — no substantial showing of a constitutional right

Lombardo v. United States, 860 F.3d 547 (7th Cir. 2017) (describing high threshold for equitable tolling: diligence plus extraordinary circumstances)
United States v. Marcello, 212 F.3d 1005 (7th Cir. 2000) (equitable‑tolling standard and caution that exceptions must not swallow the rule)
Tennard v. Dretke, 542 U.S. 274 (2004) (standard for "substantial showing" for collateral review relief)
Slack v. McDaniel, 529 U.S. 473 (2000) (standard for issuing a certificate of appealability)