Trеvor K. Ryan, now in federal prison for possessing marijuana with intent to distribute it, see 21 U.S.C. § 841(a)(1), appeals the summary denial of his motion to vacate his conviction and sentence, see 28 U.S.C. § 2255. He contends principally that the district court should have granted him an evidentiary hearing on his clаim that one or both of his lawyers deprived him of the right to counsel by failing to comply with his request to file a notice of appeal. Ryan challenges the district court’s conclusion that his motion was untimely. We vacate the judgment and remand the case for additionаl fact-finding.
Because the case turns on counsel’s alleged failure to pursue a direct appeal, the facts underlying Ryan’s conviction require little discussion. Briefly, Ryan flew a propeller plane loaded with more than 150 pounds of marijuana from Californiа to Wisconsin; was caught; pleaded guilty to violating 21 U.S.C. § 841(a)(1); and was sentenced to 65 months’ imprisonment, 3 years’ supervised release, and forfeiture under 21 U.S.C. § 853 of the plane, a car, and some other items.
Critically for this appeal, neither Ryan nor his lawyers filed a timely notice of appeal from the conviction or sentence. Ryan’s sentence therefore became final on March 26, 2009, when the 10-day deadline for appealing expired. On May 26, 2010, Ryan, now acting pro se, filed a motion to vacate under 28 U.S.C. § 2255, claiming in relevant part that counsel abandoned him on direct review by failing to file a notice of appeal, despite his instructions to do so. In his sworn motion and accompanying memorandum (also sworn), Ryan posed the allegation three times:
(1) “Counsel failed to file notice of appeal when requested he do so.”
(2) “After sentencing, petitioner requested that defense counsel file an appeal. Defense counsel failed to file an appeal, and failed to advise petitioner of the 10 day time constraint.”
(3) “Petitioner requested at the time of sentencing that his counsel file an appeal on his behalf, and was under the impression that this was being done.... Petitioner was under the impression that counsel was following his wishes. It was not until months later he discovered no notice had been filed.”
Ryan swore that neither his lawyers nor the district court informed him of the 10-day deadline for appeals, and the sentencing transcript bears out his allegation about the district court’s omission.
Anticipating an affirmative defense that his motion to vacate wаs untimely, Ryan contended that the statute of limitations did not start running under 28 U.S.C. § 2255(f)(4) — which governs the limitations period for claims arising from newly discovered facts — until at least May 26, 2009, one year before he filed his motion, because a reasonably diligent prisoner would not have known before then that counsel had failed to file an appeal. Alternatively, he argued that the limitations period did not start under § 2255(f)(2) — which governs the period for motions whose filing is impeded by the government — until June 4, 2009, when he arrived at the prison where he is currently housed; he alleged in support that he was “in transit” for the first three months of his confinement, and that prison officials did not grant him access to a law library or his own legal papers during that time. Finally, in the event that the limitations period started under § 2255(f)(1) when his conviction became final, Ryan asked the court to equitably toll the limitations period. On these timeliness issues and the substantive claim, Ryan sought discovery and a hearing.
The district court denied Ryan’s motion without requesting a response from the government or further information from Ryan. The court concluded that the motiоn was untimely under § 2255(f)(1). The court rejected Ryan’s argument for equitable tolling, explaining that even if his transit period kept him from filing a motion right away, a diligent prisoner would have done so in the nine months that followed. The court did not address Ryan’s distinct argument that, under either sub-section (f)(2) or (0(4), the one-year limitations period did not start running until less than one year before he filed his motion.
Ryan sought reconsideration, reiterating his argument under subsection (0(4), but the district court denied the motion to
II. DISCUSSION
When a defendant in a criminal case specifically instructs a lawyer to file a notice of appeal, the lawyer’s failure to do so deprives the defendant of the Sixth Amendment right to counsel, regardless of whether an appeal was likely to succeed.
Roe v. Flores-Ortega,
The government rightly concedes these general principles, but argues, first, that Ryan’s sworn allegations were so poorly drafted that dismissing the motion without addressing the merits or calling for development of the record was proper. We disagree: Ryan clearly alleged a violation of his right to appeal by counsel. Having adequately alleged a constitutional violation, the оnly other question to ask is whether Ryan had personal knowledge of the facts underlying his claim and, if so, whether anything made the allegations “palpably incredible” or discovery otherwise pointless.
Machibroda v. United States,
The government counters that Ryan fatally contradicts himself by alleging both that he instructed counsel to appeal and that counsel failed to consult him about
Turning to the question of timeliness, Ryan contends that under 28 U.S.C. § 2255(f)(4) or (f)(2), the limitations period for filing his § 2255 motion did not start running until at least May 26, 2009, two months after his сonviction became final and one year before he signed the motion. When a limitations period starts and whether it is later equitably tolled are two different questions, and if Ryan is right about the starting date, then it does not matter whether he was diligent in the months following that date.
See Montenegro v. United States,
Subsection (f)(4) lets the period run from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence,” unless some later date applies. So the relevant question here is how long a duly diligent prisoner would take to discover that his lawyer had not filed a nоtice of appeal.
See Montenegro,
No rule of thumb emerges from the cases on how long prisoners may take to discover their lawyers’ missteps, and we hesitate to pick a magic number.
Compare, e.g., Granger v. Hurt,
As a factual matter, two months may be reasonable. After all, “a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice.”
Flores-Ortega,
If we held that two months is always too long to learn the facts, we would effectively be requiring the first-time prisoner to anticipate counsel’s failure to comply with his request (not to mention counsel’s own constitutional obligation), and prepare for it by writing to counsel within days of sеntencing, thus overcoming any postal delays. Such a holding might alternatively tell prisoners to presume the worst, skip writing their lawyers, and start pestering us or the district courts for status updates immediately after sentencing. Further, the sawiest prisoners might glean from such a holding that they shоuld avoid the mail altogether and conduct every bit of important business by phone. All these possibilities illustrate hyper-vigilance, which the law does not require, rather than due diligence, which it does. We recognize that at some point, the reasonably diligent prisonеr will contact counsel, ask how the appeal is going, and either receive an honest response or infer from counsel’s silence that something is amiss (and then follow up with the court). But this is a fact-intensive inquiry and, here, that point probably lies somewhere beyond two months given Ryan’s status as a first-time offender, the court’s failure to notify him of the time to appeal, and the limited ability of prisoners — especially those in transit — to communicate freely by mail with those outside the prison.
Finally, we recognize that further factual devеlopment need not involve the full panoply of discovery techniques or even a hearing.
See Bracy v. Gramley,
We Vacate the district court’s judgment and Remand the case for additional proceedings.
Notes
. For the benefit of future litigants, we advise against using one label repeatedly deployed in the government's brief, "self-serving,” to describe an opponent's sworn testimony. Important testimony of a party is usually self-serving by its nature.
Catalan v. GMAC Mortg. Corp.,