Joe Webb v. United States, 679 F. App'x 443

Background

Joe Webb pleaded guilty (Jan 15, 2010) to cocaine conspiracy and attempt charges; PSR raised guideline to 262–327 months with a 240‑month statutory mandatory minimum; district court sentenced him to 240 months (concurrent) on Jan 7, 2011. Webb did not appeal.
Webb filed a § 2255 motion on Apr 17, 2012 (almost 15 months after sentencing), claiming ineffective assistance of counsel for failing to recognize/preserve Fair Sentencing Act (FSA) relief and for failing to consult/file an appeal (Roe v. Flores‑Ortega theory).
Government moved to dismiss as time‑barred under AEDPA’s one‑year limitations period; Webb sought equitable tolling, claiming he had instructed counsel to appeal (or alternatively that counsel misadvised him he could not appeal).
A magistrate held an evidentiary hearing and found Webb not credible and counsel credible; magistrate concluded Webb neither instructed an appeal nor acted with diligence and recommended dismissal as untimely.
District court adopted the magistrate’s factual findings, rejected Webb’s Flores‑Ortega argument as inapplicable given the appeal waiver and Webb’s conduct, denied COA, and dismissed on procedural (untimeliness) grounds.
Sixth Circuit panel affirmed the dismissal, rejecting statutory tolling under § 2255(f)(2) or (4) and equitable tolling; concurrence agreed Flores‑Ortega claim potentially exists but agreed the petition was untimely.

Issues

Issue	Plaintiff's Argument (Webb)	Defendant's Argument (Government)	Held
Timeliness of § 2255 under AEDPA	Filing was timely or tolled because counsel’s failure to consult/misadvice prevented timely filing; alternatively, limitations should run from discovery of FSA viability	Motion filed after the one‑year deadline; Webb knew or could have discovered the factual basis earlier; counsel’s conduct did not toll the deadline	Petition untimely; no statutory or equitable tolling — affirmed
Equitable tolling for counsel misconduct	Counsel’s Flores‑Ortega violation (failure to consult / misadvice) was an extraordinary circumstance and Webb diligently pursued rights once he discovered the error	Webb failed to show diligence; he knew facts (no appeal entry, conversations with counsel) well before filing; pro se ignorance not extraordinary	Equitable tolling denied; Webb not diligent and no extraordinary circumstance
§ 2255(f)(4) — start date when facts discoverable	Limit should begin when Webb learned of FSA applicability (e.g., Dorsey) or when he got his file	(Gov) Discovery of legal viability does not restart the clock; § 2255(f)(4) concerns discovery of new facts, not new law	§ 2255(f)(4) not available — Webb had the operative facts earlier; Dorsey only clarified legal significance
§ 2255(f)(2) — governmental‑action impediment	Counsel’s ineffective assistance operated as a governmental impediment preventing timely filing	§ 2255(f)(2) requires a causal governmental action that prevented filing; Webb had no such causal impediment and did not need exhaustion	§ 2255(f)(2) inapplicable — no causal state‑created impediment to filing a § 2255

Key Cases Cited

Roe v. Flores‑Ortega, 528 U.S. 470 (2000) (attorney must consult about an appeal when a reasonable defendant would want to appeal or defendant indicates such a desire)
Dorsey v. United States, 567 U.S. 260 (2012) (clarified that the Fair Sentencing Act applies to certain offenders sentenced after its enactment)
DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006) (remanding when sentencing court or counsel failed to inform defendant of appeal rights such that diligence to discover appeal right may be excused)
Keeling v. Warden, 673 F.3d 452 (6th Cir. 2012) (equitable tolling requires diligence and an extraordinary circumstance)
Ford v. Gonzalez, 688 F.3d 1230 (9th Cir. 2012) (limitations period begins when petitioner knows or through diligence could discover the facts supporting the claim)
Owens v. Boyd, 235 F.3d 356 (7th Cir. 2000) (time begins when petitioner knows important facts, not when he recognizes their legal significance)