Kenneth Andrew JEFFERSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 08-2167.
United States Court of Appeals, Sixth Circuit.
Aug. 23, 2010.
427
RALPH B. GUY, JR., Circuit Judge.
Petitioner Kenneth Andrew Jefferson, a federal prisoner, appeals from the dismissal of his
I.
In June 1999, after a lengthy jury trial, Jefferson was convicted, along with codefendants Joseph Stines, Keith Phelan, Du-
Jefferson appealed, and this court affirmed his conviction (as well as the convictions of Stines, Ford, and Phelan) in United States v. Stines, 313 F.3d 912 (6th Cir. 2002). Jefferson‘s three other codefendants cooperated in exchange for reduced sentences. Some background concerning the evidence is helpful in evaluating the issues raised in this appeal. As we summarized in Stines:
The voluminous testimony and other evidence introduced at trial established the following facts. In the late 1980‘s Joseph Stines organized a gang in Ypsilanti, Michigan, to “distribute crack cocaine and make money.” The initial members included Keith Phelan, Tever Scarbrough, Reese Palmer, Rasual Warren, Hans Thomas and Stanley Anderson. Stines and Palmer learned to measure, package and “rock up” crack cocaine in 1989. Together with Hans Thomas, they obtained large quantities of cocaine from LaBaron Hunter and other sources in Detroit and brought it back to Ypsilanti to be processed and distributed.
During the early years, Stines sold directly to customers, sometimes out of a parked car. Stines was arrested in June 1989 for selling crack on the street.
By 1993, Stines considered himself a “drug kingpin,” and he divided up and assigned territory to other members.
In May 1995, Oscar Little, an acquaintance of Stines, agreed to cooperate with the police. Little purchased one ounce of crack directly from Stines at an apartment on Elmwood. The purchase and other information supplied by Little provided probable cause to search the apartment on Elmwood and Stines‘s apartment on Spinnacker Way.... Stines was arrested after the search and he offered to cooperate with the police. He told Lieutenant Donald Bailey that he was buying ten to fifteen kilograms of cocaine from LaBaron Hunter every couple of weeks. Bailey released Stines, hoping to use him to investigate Hunter, but Stines did not cooperate.
Rasual Warren, one of the original gang members, was released from a rehabilitation program in July 1996. Phelan directed Warren to JJ‘s Car Wash when he asked about Stines. Stines introduced Durand Ford as his “right hand man” and Phelan as his “enforcer.” Initially, Stines said that he wasn‘t in the drug business any more, then said he still sells but “keeps it in the Stone Life [gang] circle.” Stines assigned Warren to sell crack on Grove Street, but he was later moved to make room for Palmer....
After Palmer was released from prison in September 1996, he chose Grove Street as his territory.... Palmer made several sales to [an undercover officer] in October and November 1996. Palmer was arrested based on those sales. He agreed to cooperate with the police and taped a conversation with Stines during which Stines talked about tactics to evade police by revealing that he did not “go outside the circle,” and he had Ford deal with everyone else. After Palmer
bought crack from him, Stines left in a car driven by Ford. Police managed to make a series of undercover crack purchases from Scarbrough in July 1997. Scarbrough arrived for the third meeting in a car registered to Kenneth Jefferson. After Scarbrough was arrested, he allowed police to record a conversation with Stines that provided police with Stines‘s Doral Street address. Scarbrough also bought an ounce of crack from Stines while police surveilled from a distance. Two days later, Scarbrough met Stines outside a store to pay for the crack. While they talked in the car, Phelan took some other men who had accompanied them into the store.
Later that same year, Jefferson sold Labron Nunn two and a half ounces of crack. Jefferson obtained the crack for the sale from Anita Hargrove‘s home, where he was staying. Hargrove was Stines‘s girlfriend and he used her apartment as a “stash house.” Jefferson asked Nunn to join “the family,” but Nunn declined.
Id. at 914-15. Significant to this court‘s rejection of Jefferson‘s challenge to the sufficiency of the evidence was that:
When Jefferson was subsequently arrested, he admitted that he had started selling crack in Ypsilanti in the summer of 1996. He said that Scarbrough was one of his principal suppliers and that he often bought one-eighth of a kilogram, but on two occasions he had purchased a half kilogram.
Id. at 915.1 In addition, this court noted Nunn‘s testimony that the crack cocaine he purchased from Jefferson had been stored at Stines‘s girlfriend‘s house. The court also found no basis to disregard the testimony of Samuel Mullice that in 1996 he met Jefferson at their parole office, and Jefferson gave him a business card and invited him to call if he wanted to “do something.” Mullice testified that he understood this to mean selling drugs, although that was not stated.
Although there was some question in the district court about when Jefferson‘s conviction became final for purposes of
In August 2005, the magistrate judge recommended that Jefferson‘s March 2005 motions be denied as untimely because they asserted new claims that would not “relate back” to what the magistrate judge assumed to be a timely
Jefferson was not the first or the only defendant in this case to raise similar claims of prosecutorial misconduct. Ford and Phelan, however, did not do so until after their Jefferson appealed, and the district court granted his motion for certificate of appealability in a one-line order. The government does not argue that the certificate of appealability was defective because it did not assess the merits. Slack v. McDaniel, 529 U.S. 473, 484 (2000); Porterfield v. Bell, 258 F.3d 484, 486 (2001). Nor does the government ask that we bypass the timeliness issue and deny the claims on the merits. See Pough v. United States, 442 F.3d 959, 965-66 (6th Cir. 2006). For these reasons, we confine our review to the dismissal on statute of limitations grounds. The one-year limitations period applicable to a Jefferson argues that the facts supporting the claims could not have been discovered until either: (1) September 2, 2004, with the dismissal of the terrorism charge in United States v. Koubriti, 336 F. Supp. 2d 676 (E.D. Mich. 2004), because the same prosecutor who tried Jefferson‘s case, Richard Convertino, failed to disclose exculpatory and impeachment evidence in that case; or (2) September 30, 2005, when the government disclosed letters written by cooperating witnesses Hans Thomas, Tali Alexander, and Rasual Warren as part of an investigation into Convertino‘s possible unauthorized downward departures for these and other cooperating witnesses. The district court summarily rejected both arguments because Koubriti involved conduct in a separate unrelated case and the government‘s disclosures in September 2005 came after Jefferson filed his March 2005 motions. We agree with the district court that nothing in the Koubriti decision would provide a factual predicate for Jefferson‘s claims; the fact that Koubriti involved the same prosecutor is not sufficient. Nor can Jefferson logically argue that he did not discover the facts supporting the claims presented in the March 2005 motions until after the government‘s disclosures in September 2005. Rejection of this proposition, however, did not resolve the critical question of whether Jefferson‘s additional claims were brought within one year of “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” It appears that there was suspicion at trial that at least one cooperating witness had been promised more than was being disclosed. Counsel for Ford asked Hans Thomas whether it was “conceivable” that he could be “out” in five years. Convertino objected, emphasizing that Thomas faced a mandatory minimum of ten years, and then solicited from Thomas an estimate that his likely sentence would be 15 to 23 years. Thomas (like other cooperating witnesses) was not sentenced until after trial, however, and the judgment and other sentencing records were sealed. In the motion for new trial filed by Stines in June 2000 (and joined in by Jefferson), it was asserted that the government must have withheld information concerning the extent of the cooperation agreement with Reese Palmer because Palmer was released shortly after the trial. It was also alleged that Palmer, Alexander, and Warren had conspired to give false testimony. This motion for new trial was not decided on the merits, but was denied because of the pending appeal. When these claims were raised again on direct appeal from the judgment of convic- For example, Stines learned that Thomas had been arrested for a 2002 murder when he should still have been serving his sentence under the plea agreement. Exactly when this occurred is not clear from the record. Nevertheless, once it was discovered, counsel for Stines started digging. When the records of Thomas‘s sentencing were unsealed, it was discovered that Thomas was sentenced to a 6-year term of imprisonment based on an oral motion for downward departure. A year later, on the grounds of additional cooperation and a Rule 35(b) motion, Thomas‘s sentence was reduced to “time served.” Thomas would later admit in the letter to investigators, which was among those disclosed in September 2005, that Convertino had assured Thomas that he would “do much better” in the end than the plea agreement reflected. Counsel for Stines began looking further into the sealed sentencing records of other cooperating witnesses, including Alexander, Palmer, Reed, Warren, Mullice, Little, and Nunn. The effort met with some resistance and it is not immediately apparent how quickly this investigation proceeded; except that counsel for Stines was still filing motions to unseal records at the end of 2005. Also, a stipulation was entered allowing Stines additional time to amend his We cannot ignore that it was in March 2004, one year before Jefferson‘s motions were filed, that Alexander wrote to his sentencing judge seeking assurance that he would get the additional reduction in his sentence that he claimed to have been promised by Convertino. That letter, turned over to the United States Attorney‘s Office, prompted an investigation into various sentencing departures requested by Convertino on behalf of defendants in United States v. Alexander, et al., seven of whom testified for the government in this case. That investigation led to the disclosures in September 2005, and culminated with the completion of the “Schools Memorandum” in January 2006. Without recounting the information set forth in that Memorandum, we note that it suggests there is evidence that Convertino met with some cooperating witnesses in this case without defense counsel; entered written plea agreements and made some, at least tacit, promises of further sentence reductions; had witnesses testify without revealing the additional understandings; moved orally at sentencing or in Rule 35 motions for downward departures; and had the sentencing records of these witnesses sealed. The fairness of Jefferson‘s trial was not the focus of the investigation, but it produced evidence that the government felt compelled to disclose to Jefferson. Stines filed his amended The district court did not make a finding, and it is not clear from the record, as to whether Jefferson brought these claims within one year of the date on which the facts supporting them could have been discovered through the exercise of due diligence. Jefferson argued, in the alternative, that equitable tolling should apply to avoid the bar of the statute of limitations with respect to the claims raised in his March 2005 motions. This court has held In determining whether to apply equitable tolling, the following factors are considered: “(1) the petitioner‘s lack of notice of the filing requirement; (2) the petitioner‘s lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one‘s rights; (4) absence of prejudice to the respondent; and (5) the petitioner‘s reasonableness in remaining ignorant of the legal requirement for filing his claim.” Solomon, 467 F.3d at 933 (citing Dunlap, 250 F.3d at 1008). These factors are not necessarily comprehensive, nor is each factor relevant in every case. Id.; see also King v. Bell, 378 F.3d 550, 553 (6th Cir. 2004). When the petitioner does not claim ignorance of the filing requirement, the focus of the inquiry is on his diligence and the reasonableness of his ignorance of the effect of his delay. King, 378 F.3d at 553. Jefferson argues that he diligently pursued his claims, but did not have access to the facts to support his allegations because the prosecutor‘s conduct concealed the facts that supported his claims of prosecutorial misconduct. Jefferson raised equitable tolling in opposing dismissal on statute of limitations grounds, but the district court did not address the issue in dismissing Jefferson‘s claims as untimely. Accordingly, we remand for the district court to consider in the first instance whether to apply equitable tolling to permit Jefferson to pursue the claims raised in his March 2005 motions. Accordingly, we REVERSE the dismissal of Jefferson‘s II.
A. One-Year Limitations Period
B. Equitable Tolling