Solomon v. United States

DUGGAN, District Judges; Circuit Judge.* 935-43),

GRIFFIN, (pp. delivered J. dissenting opinion. separate

OPINION DUGGAN, Judge. District

PATRICK J. Solomon, Christopher cur- Petitioner fol- rently serving a 240-month sentence conviction in the United States lowing his for the District of District Court Southern intentionally pos- knowingly for Ohio crack sessing with the intent to distribute cocaine, appeals the district court’s denial aside, vacate, set or cor- of his motion to to 28 U.S.C. pursuant rect sentence § on its own initiative the Raising Anti- set forth of limitations statute Penalty Death Act and Effective terrorism 104-132, (“AEDPA”), L No. Pub. court found the district Stat. untimely. 2255 motion Petitioner’s Section Francisco, Jones ARGUED: Noel J. court further concluded The district D.C., Washington, Appellant. for Day, equitable was not entitled Petitioner Glassman, Benjamin C. Assistant his motion. therefore dismissed tolling and Cincinnati, Ohio, Ap- for Attorney, States unnecessary to decide whether find it We Francisco, BRIEF: Noel J. pellee. ON sponte rais- court erred sua the district Castanias, William L. McCos- Gregory limitations, A. AEDPA’s statute of ing the D.C., Ap- key, Day, Washington, Jones conclude that Petitioner because we Glassman, Benjamin tolling.1 C. William there- pellant. We entitled Hunt, Attor- of the district E. Assistant United States the orders fore REVERSE Cincinnati, Ohio, Appellee. REMAND to the district neys, court and Solomon, of Petitioner’s Ken- on the merits Lexington, L. for a decision Christopher motion. tucky, pro se.

* Day, Following Petitioner Duggan, United Patrick J. The Honorable Judge the Eastern District States District filed letter briefs in and the sitting by designation. Michigan, government urged this Court case. The context; 25, 2006, Supreme Day is- Peti- April in the Section 1. On - Day McDonough, sued its decision argued between the that distinctions tioner -, 164 L.Ed.2d Day in- render statutes of limitation relevant presented in the in the circumstances We will leave applicable to Section 2255. case, proper for the district court it was panel, as we find for another issue of limitations on its raise the AEDPA's statute unnecessary the issue in order to reach prisoner’s own initiative and dismiss state appeal. Petitioner's resolve pursuant corpus petition, filed to 28 Background Procedural being placefd] segregated housing;

Factual Which has prevented] any him from Petitioner was tried and con any legal access to material. of distribution crack cocaine and victed imprisonment. 240 months sentenced to On Petitioner filed a mo- unsuccessfully appealed He his conviction asking tion expedite district to Soloman, and sentence. United States v. ruling previously its on his filed motion for 92-3892, 1993 case WL Cir. transcripts, which the district court had 5, 1993) May (unpublished opinion). motion, yet addressed. In this Peti- 27, 1997, January again On Petitioner filed a tioner states his intent to a file Sec- motion, in court requesting motion the district tion attempting that he is to transcripts from his criminal deadline, case order file by April the motion to file a Section 2255 motion. Attached to and that transcripts without the he must a completed Appli- Petitioner’s motion was rely memory present argu- on his his Pauperis. cation to Proceed in Forma Pe- ments. The district court took no action application titioner indicated on this requests on Petitioner’s transcripts. for filing pursuant he was a motion to Section 26, 1997, On June Petitioner filed his Section 2255 motion in which he raises 10, 1997, April On Petitioner filed mo- eight claims challenging his conviction. tion the district court entitled “Motion signed Petitioner and dated his motion on of Notification of Intent to File 28 U.S.C. 27, 1997, June August 1997. On Vacate, § 2255 Corpus Habus Set [sic] district court issued an order directing the Aside, or Correct Sentence.” this mo- government response to file a peti- tion, Petitioner states that he intends to tion. The filed response its file a 2255 motion but “[d]ue 30, 1997, September addressing only control, beyond very circumstances his is the merits of Petitioner’s claims. unlikely that ... he will be able to file his After reply Petitioner filed a gov- motion April before the deadline set response ernment’s on November Congress.” explains Petitioner those cir- he filed additional motions asking the dis- cumstances as follows: stay trict court to proceedings, grant The reason for Inmate delay Solomon’s request transcripts, his and allow him in filing this motion is due to his transfer time to transcripts review the and amend Marion, IL., from the prison Federal his Section 2255 motion if necessary. On (At on March which time he 2, 1999, March almost fifteen months after inwas progress completing his 28 Petitioner filed his reply and without ad- motion.) He at arrive[d] dressing the motions Petitioner filed in the TN., prison in Memphis, on March January interim or his April 27 and 27, 1997, presence to secure his aas 1997 motions requesting transcripts, witness, for a trial that is to be held in district court referred Petitioner’s Section Memphis on April 1997. Due to a magistrate judge motion to for dis- presence inmate at Solomon[’s] the Fed- position recommendation. and/or prison eral Memphis, sepa- at [he w]as rated him legal later, from his work at the Less than two weeks magis- prison Marion, IL., until his return. judge Report trate filed his and Recom- Also, (“R R”) due being to inmate Solomon mendation & in which he sua high security pris- sponte tran[s]fer[red] from raised the AEDPA’s limi- statute of on to a security low one—has resulted tations and recommended that Petitioner’s peti- not address the of the it was filed R did merits dismissed because motion be days expiration sixty tion, more after magistrate than the court summarizes 24, 1997, filing grace the April “concluding] that none judge’s opinion as after the AEDPA’s enact- petitions meri- claims raised defendant is magistrate determined judge ment.2 The recommending] therefore torious and AEDPA’s statute of limitations denied on Motion defendant’s Vacate but, subject applying equitable tolling, its merits.” exceptional circumstances” the “rare and test, failed to that Petitioner Petitioner filed motion for reconsidera- concluded The is entitled to relief. prove that he again in which he tion on magistrate judge reasoned: delay filing asserted reasons explanation has offered no

[Petitioner] 29, motion.4 On November Section 1993, to delayed May, from why he 2000, appointed the district court counsel March, prepare to his 2255 Mo- Petitioner, represent Petitioner. to tion, transcripts. except request his counsel, then filed a memorandum through §a requirement no that There is in motion for recon- support Petitioner’s accompanied by transcripts, Motion be 3;May on In this memo- sideration 2001. eventually filed his and Mr. Solomon randum, pointed out that Petitioner the in them. complains Motion without He & never addressed judge’s R R magistrate that have the Response his he does not fur- petition. merits of the Petitioner the his proceeds then to tell transcripts, but argued equita- that he entitled to ther was in the crime and story happened of what court erred in tolling, ble district him- happened afterwards between what a Peti- conducting hearing to'enable not attorney, self his trial none of which and why and he develop to establish was tioner transcripts.3 the would be reflected equitable tolling, and the entitled R, objections R & filed Petitioner the run- court should have tolled district contending equitable tolling should when Peti- ning of the limitations presented. the circumstances under intent to file a filed his notice of tioner 13, 1999, is- the April On district also 2255 motion. Petitioner Section page adopting a half sued a one and order April its 13 order the court to vacate asked reference the & R R. and incorporating because, ap- the court argued, Petitioner order, the district court states the misinterpreted parently and misconstrued “a de novo it review of the conducted merits of addressing R & R as record, light especially of Mr. Solomon’s that the & R 2255 motion. objections.” Despite the fact Hyatt seeking corpus govern- relief. no statute of tions 2.There was limitations States, (6th petitions ing filing when Peti- of habeas Cir. and sentence became final. tioner's conviction 2000). sentence, serving was Petitioner While AEDPA, however, Congress enacted required, transcripts may While not one-year period for added a limitations which petitioner certainly a is understandable that pursuant as filed to Section motions transcripts to assist in or would like corpus petitions a for writ of habeas well corpus petition. a preparation of habeas her pursuant 28 U.S.C. filed Section 2254. 2244(d)(1) §§ & 2255. AEDPA became The infra, court did not the district 4. As indicated whose April 1996. Petitioners effective on for reconsidera- rule on Petitioner's motion enact- became final before the convictions March tion until provided AEDPAwere ment of the 24, 1997, grace April mo- period until file the district court con- On 2255 motions and that magistrate judge ducted a status conference. At the confer- correctly therefore recommended ence, apparently Petitioner’s counsel the dismissal of motion. Petitioner’s The raised the issue of whether the court had district court then identified the factors authority jt dismiss the determining relevant appropriate- procedural grounds light of Scott v. equitable tolling ness of set forth Dun- Collins, Cir.2002),5 286 F.3d 923 which lap v. United Cir.2001), but, had been issued the interim. The status without addressing May factors, conference continued on those concluded that Petitioner following day the district court issued entitled to tolling. Fo- granting days an order Petitioner 60 cusing on the merits of the claims raised present support additional evidence to motion, his Petitioner’s Section 2255 rather reconsideration, requiring motion for issue, than on the statute of limitations file response days district court also concluded that Petition- thereafter, allowing Petitioner to file a er was not ap- entitled to certificate of reply days later. pealability. appear

It does not the record that Petitioner appeal thereafter filed presented Petitioner additional evidence. moved this Court for a ap- certificate of apparently was There some confusion pealability. 22, 2004, On November among the after the parties district court’s granted request Petitioner’s for a 22, order, however, May regarding 2003 certificate of appealability respect with the issues the district court wanted them following issues: supplemental address in their pleadings 1) any Whether regarding issue (perhaps magistrate because the judge timeliness of Petitioner’s Section 2255 recommended denial of the Section 2255 motion was by waived the Govern- motion based on the statute of limitations ment’s failure to raise a limitations but the district referred to the mer- in response; defense its petition its of the when it adopted the R & 2) any by Whether waiver the Govern- R, perhaps or because of the discussion of ment was cured opportunities conference). Scott at the status The dis- that Petitioner had to argue that his trict court therefore scheduled an addition- motion timely; was 10, al May status conference for 3) Whether the limitations should conference, 26, Prior to the February be equitable tolled for reasons. “supplemen- filed a response” argued tal in which it that Scott Standard of Review apply

does not to Section 2255 motions prisoners. filed federal This Court reviews a district On March the district court court’s decision on the issue of issued an denying order tolling Petitioner’s mo- de novo where the facts are undis tion for reconsideration. The puted. Yukins, court con- Allen v. 401 (6th Cir.2004). cluded inapplicable that Scott is to Section Scott, held, panel of this Court in the The Scott court further held that a court’s pursuant context of a filed sponte to 28 impermissi- "sua dismissal ... [is] an curing the AEDPA’s statute of ble of the [Government's] waiver.” Id. limitations is affirmative defense that suggested supra, at 930. As Supreme timely waived if not raised. 286 F.3d at 927. Day abrogates Court’s in decision Scott. remaining igno- in Tolling his reasonableness Equitable requirement filing legal of the rant following factors We claim. ap equitable tolling is whether determine (1) lack of no petitioner’s propriate: rea- will first consider Petitioner’s We (2) filing requirement; peti tice of the in of the remaining ignorant sonableness knowledge of lack of constructive tioner’s period. limitations As Petition- AEDPA’s (3) diligence filing requirement; us, ignorant er informs he of Con- was (4) prej of rights; one’s absence pursuing gress’ adoption limitations (5) peti respondent; udice petitions period for habeas remaining igno reasonableness tioner’s enacted, until when the statute was filing his legal requirement rant delay does not “the turn 1997.” This (adopting 250 F.3d at 1008 Dunlap, claim. light of Petitioner’s appear unreasonable Orr, factors set forth Andrews to the circum- explanation “[d]ue Cir.1988)). (6th fac F.2d 146 These five Marion, poor that exist at there is stances comprehensive, nor is each tors are not changing circulation of information on laws in all Cook v. Ste factor relevant cases. Cir.), gall, F.3d cert. to inmates.” available denied, respect diligence to Petitioner’s With (2002). propriety “The L.Ed.2d pursuing rights, provides Petitioner necessarily deter equitable tolling must after following description of his activities case-by-case Truitt v. mined on basis.” peri- limitations learning of the AEDPA’s Wayne, 148 County time, he incarcerated od. At the Cir.1998). cautioned, how This Court has Marion, Illinois, ac- gained inmates where ever, equitable tolling should be library to the law on a rotational cess at granted sparingly. Dunlap, 250 F.3d during the explains Petitioner basis.6 1008-09. great months of “there was first few was Petitioner concedes that he jock- inmates competitiveness amongst the one-year grace pe the AEDPA’s aware of library in for time the small unit ing [sic] Additionally, turn of riod “at 1997.” the time AEDPA at Marion because (and does not claim he provides that limitation.” Petitioner find) as any prejudice district court did not studying day night worked and “diligently filing in his delay a of Petitioner’s result his ... until his unsus- preparing and our petition. therefore must focus We March pected Memphis on departure in the inquiry on the third fifth factors during period, It was this time 1997.” set forth five-prong test above. See Vro 27, 1997, that Peti- January specifically Brigano, 346 F.3d man v. a motion in the district Cir.2003). tioner filed Again, peti those factors are he transcripts indicated diligence pursuing rights requesting in his he tioner’s connecting judge’s only unit objections magistrate R if an inmate in the his In R, process & requeste[d] Petitioner described the order to it first. has legal Marion inmates obtain materials: which citing, inmate books with case receive Library depart- Access to the Law is non-existence a to sent note to the school [sic] has Every advance, unit has cell-like room with only [sic]. night ment pertaining a hundred law book[s] less than day. inmate An allow[ed] three books only. statutes There is a to Federal to re- cite the case number in order must typ[e]writer that is with a connect- shared following day. the book ceive unit, upon pre-request ing and is available ... Cook, “needs order to file” his Relying on this Court’s decision in 521-22, at government argues motion. Petitioner is not entitled to 19,1997, March On Petitioner was trans- tolling because he has no excuse for “sit- legal ferred without his materials to a fa- ting on his claims” from the time his con- OMahoma, cility placed where he was in viction and sentence became final some- pending administrative detention his trans- began time in 1993 until he preparing his Memphis, fer to Upon Tennessee. learn- Section 2255 in January motion ing being that he was transferred Mem- There are at why least two reasons Cook is phis to presence secure his as a witness in distinguishable from Petitioner’s case. trial, an upcoming immediately Petitioner First, petitioner in Cook filed his habe- asked staff members at the Oklahoma fa- petition years almost after twelve his cility to him provide with the or address conviction became final. 295 F.3d at 518. phone number of the Clerk of the District Second, only filing Cook’s excuse for According Cincinnati. to Peti- petition grace almost month after the tioner, he wanted to inform the court of period expired his was that prison copier situation. days was broken a few before the Here, was due. Id. at 521-22. Peti- he Memphis When arrived at the facili- tioner impeded was from completing his ty security prison low was —a —Petitioner petition more than one month before it segregated housed in housing due to his was due and one month thereafter because security maximum classification. While he of his transfer to other facilities to secure attempted to use library, the law he claims his testimony Additionally, a trial. pri- access was even more restricted than in or to preparing motion, his Section 2255 Marion. Petitioner continued to seek the Petitioner was not sleeping rights. on his phone address or number of the Clerk of Instead, Petitioner taking steps he Cincinnati, the District Court and even- believed were necessary to craft legal tually a staff member arranged for Peti- motion. As explains, Petitioner based on tioner to call court. According to Peti- procedure filing motions for habeas tioner, explained predicament he to one prior relief to Congress’ adoption of a stat- of the court clerks and was advised AEDPA, ute of limitations in the he be- clerk to file a “Notification of Intent”' to lieved “he had time to enhance his knowl- file his 2255 motion. Petitioner claims edge law, of the raising while his level of that he called the court a second time to formal education.” learn caption how to the motion and what We do not fault any Petitioner for delay he should body state of the motion. in pursuing rights based on his ef- advice, 3,1997, Heeding that on April Peti- forts —or lack thereof —before the one- signed tioner and forwarded to the district year limitations was enacted. As court his “Motion of Notification of Intent magistrate judge R, noted his R & § to File 28 U.S.C. 2255 Corpus Habeas to prior AEDPA, to the enactment of the “a Vacate, Aside, Set or Correct Sentence.” petitioner habeas any could file at time.” May On Petitioner was returned fact, one-year before the statute of limi- to Marion and within completed a month tations adopted, twenty-five was even a his Section 2255 motion. These facts dem- year delay filing a petition habeas did onstrate that diligently Petitioner pursued consideration, not bar its provided there rights once he became aware of the was no prejudice See, AEDPA’s statute of Mintzes, limitations. delay. e.g., Buchanon v.

935 (6th of Cir.1984)(concluding duplication proportion any out to 274, F.2d 281 734 mounting delay years gain of federal preserving appearance 25 of fair- (citation challenge guilty pleas omitted). did corpus to Id. ness. had petitioner’s claim where state not bar reassignment is We conclude ability prejudiced in its to re

not been in this necessary not case. There is a claims); also v. to see Strahan spond (5th having judge to Blackburn, benefit district 438, 441-43 4 n. presided who over trial the defendant’s Cir.1985)(surveying appellate all level 9(a) subsequently Rule review defendant’s filed applying cases former of cases, not Governing may Section 2254 which Section 2255 motion. It be neces Rules witness, of to employ sary judge doctrine laches determine to call the district as petition whether a must be dismissed due suggests, as Petitioner because district declining dis delay, citing cases to rely her judge simply may on his or recol as petitions delay lengthy where was miss of the criminal in de proceedings lections twenty years). as ciding a 2255 without testi motion States, v. fying. See Blanton United above, Based on the we conclude that Cir.1996)(citing F.3d Black equitably toll appropriate this is case Allison, ledge v. 431 U.S. n. limitations. Peti- the AEDPA’s statute n. 52 L.Ed.2d 136 S.Ct. Section 2255 motion therefore is tioner’s (1977)). handling While the district court’s be on not time-barred should reviewed request for habeas relief Petitioner’s Accordingly, the case its merits. will correct, not we do find that it was remanded the district court. conceptions any improper on re based argues that on Petitioner remand garding the merits of Petitioner’s claims. reassigned this case should be a differ judge. Pursuant to 28 ent district court Accordingly, this is REMAND- matter authority we have the ED the United District Court for States case re reassignment order the of a District of for consider- the Southern Ohio however, Reassignment, mand. “is an ‘ex for habe- ation of merits traordinary rarely power and should be corpus relief. Reassignments ... should be

invoked infrequently greatest and with the made GRIFFIN, dissenting. Judge, Circuit ” v. Sagan reluctance.’ United Congress imposed new and substantial 493, 501 Arm Cir.2003)(quoting F.3d corpus the writ of habeas restrictions on Am., co, Inc. Steelworkers Antiter- by its enactment the landmark AFL-CIO, Local Penalty Act of rorism and Effective Death (6th Cir.2002)). To determine whether (“AEDPA”). At in the present (1) 1996 issue reassignment necessary, we consider limi- case is AEDPA’s statute of original judge would reason whether specific tolling provisions and tations its expected to substantial diffi ably have to brought pursuant for 28 U.S.C. petitions out of his or mind culty putting her (2) Dunlap it not for § 2255. Were previously expressed findings; views or (6th Cir.2001), and 250 F.3d 1001 pre advisable reassignment whether is (3) subsequent justice; published decisions appearance of our serve give Dunlap,1 I would effect reassignment would entail waste have followed whether limitations, subject two-judge majority therefore Dunlap, purported- statute of was In that, by equitable tolling. Judge § Siler ly As noted held because U.S.C. 2255 was plain language § 28 U.S.C. petitioner under which pro- seeks relief petition and hold Solomon’s for habe- following one-year vides for the period of corpus as relief is barred by limitation and tolling periods: Furthermore, limitations. statute of 1-year A period of apply limitation shall plain wording would hold of 28 to a motion under this section. The limita- provide judi- § 2255 does not for tion shall run from the latest of—(cid:127) cially-created “equitable tolling.” (1) the date on which judgment I. final; conviction becomes 1992, In petitioner-appellant Christo (2) the date on which impediment pher Solomon was convicted in the United making a by motion created govern- States District Court the Southern Dis mental action in violation of the Con- trict of Ohio of knowingly intentionally stitution or laws of the United States (“crack”) cocaine possessing base with in removed, is if the movant pre- was tent to distribute violation of U.S.C. vented making motion 841(a). § petitioner’s connection with governmental action; such court, timely appeal to this transcripts of the trial court proceedings prepared were (3) the date on right which the asserted petitioner and furnished to his and/or initially recognized was by the Su- May counsel. In this court affirmed Court, preme if right has been petitioner’s conviction and sentence in an newly recognized by Supreme order, unpublished United States v. Solo Court and made retroactively appli- man, 92-3892, (6th No. 1993 WL 147569 review; cable to cases on collateral 5, 1993). May Cir. or later, years Over four on June (4) the date on which the support- facts pro petition Solomon filed a se for a writ ing the claim or presented claims corpus pursuant habeas rights af- could have been through discovered him by § forded 28 U.S.C. 2255. Solo- the exercise of diligence. due petition mon’s was a fill-in-the-blank form furnished the United States District ¶ § 28 U.S.C. 2255 6. Congress added the (AO 5-85). revised It alleged one-year statutory period specific and its counsel, ineffective assistance of among tolling provisions part AEDPA, effec- claims, other typewritten attached a tive 1996. Because Solomon filed argument. petition habeas after AEDPA’s effec- date, Solomon’s tive a writ of AEDPA’s statute of limitations corpus clearly untimely, pursuant tolling provisions and its to this case. plain language of 28 U.S.C. 2255. Lindh v. Murphy, 326-27, U.S. Specifically, the habeas corpus provision (1997). 117 S.Ct. 138 L.Ed.2d 481 concurrence, majority’s (2006). conclusion 81 N.Y. UNIV. L. REV. 1249 Howev- regard er, with necessary to this issue was not portion because this Dunlap has been reason, disposition of the case. For subsequent published followed in decisions of Dunlap “holding” court, see, arguably obiter dic e.g., our Burgess, Cobas v. 306 F.3d Yoon,

tum. Cir.2002), See U.S. v. 398 F.3d Stegall, and Cook v. - Cir.), denied, -, cert. (6th Cir.2002), I consider it 548, (2005); 163 L.Ed.2d 460 precédentially binding BLACK'S LAW until such time as it is DICTIONARY, ed.; Leval, Judg 8th by Pierre N. Supreme overruled by the Court or ing Dicta, Under the 206(c). Constitution: Dicta About court en banc. 6th CIR. R.

937 the mean.”28 to know what words II. want other agree I with Holmes’s re- And court, appeal, peti- on In the and district mark, by quoted approvingly Justice tolling argue any of the not tioner does not what the inquire do Jackson: “We Rather, by Congress. enacted provisions meant; only legislature we ask what untimely habeas that his asserts Solomon means.”29 statute petition should be excused because corpus judicially-created “equi- doctrine of of Frankfurter, tolling.” table Felix 28. Some Reflections Statutes, Reading 47 Colum. L.Rev. of Central Sch. Recently, Arlington 527, (1947). 538 U.S.-, 548 Murphy, Bd. Ed. v.

Dist. of Holmes, Wendell Collected Le- Oliver 2455, (2006), 526 126 S.Ct. 165 L.Ed.2d (1920), Schwegmann Papers quoted gal 207 following emphasized Supreme Court 384, Corp., 341 U.S. Bros. v. Calvert Distillers 397, 745, (1951) con- statutory of principles 71 95 1035 fundamental S.Ct. L.Ed. J., (Jackson, concurring). struction: again and that We have “stated time SCALIA, A ANTONIN MATTER OF presume legislature that courts must FEDERAL INTERPRETATION: it means and says a statute what (PRINCE- THE COURTS AND LAW says it there.” means a statute what 1997). TON PRESS UNIY. Germain, Nat. Bank v. 503 Connecticut date, yet has Supreme Court To 253-254, 117 U.S. 112 S.Ct. judiciary is authorized to rule whether (1992). statutory L.Ed.2d 391 When 28 2255 to include other rewrite plain, is the sole function “language grounds tolling provided not “equitable” the disposi- the courts—at least where Congress. DiGugliel See Pace v. by the required tion text is absurd— mo, 8,n. 544 U.S. 418 125 S.Ct. according to its terms.” is enforce (2005). Although L.Ed.2d 669 Justices Ins. Co. v. Un- Underwriters Hartford suggested have Stevens Souter Bank, N.A., 1, 6, ion Planters U.S. may of limitation AEDPA’s statutes (2000) L.Ed.2d 1 120 S.Ct. subject tolling, Duncan v. equitable v. Ron Pair En- (quoting United States Walker, 167, 182-84, 121 533 U.S. S.Ct. Inc., 235, 241, terprises, U.S. (2001) (Stevens, 150 L.Ed.2d 251 J. (1989), S.Ct. 103 L.Ed.2d 290 Souter, J.), joined by concurring, part, quoting turn Caminetti United majority the Court has construed L.Ed. its according AEDPA text: “Our task (1917); marks quotation internal Congress has enacted. to construe what omitted.) begin, always, language with the We Id., 126 at 2459. S.Ct. Duncan, 172, 121 at 533 U.S. the statute.” further As Justice Scalia has elaborated: S.Ct. law, it is The text is the the text Moreover, rejected agree I Court has observed. with must be remark, “equitable tolling” should quoted ap- argument Justice Holmes’s plain, detailed stat specific, in his provingly Justice Frankfurter States v. utes of limitation. article on the construction statutes: 347, 117 849, 136 “Only Brockamp, 519 U.S. S.Ct. day ago or two counsel —when (1997), I a unanimous legislature, L.Ed.2d 818 talked of the intention of a invitation to re say rejected respondent’s I enough don’t indiscreet nonstatutory reasons” only “for care what their intention was. write 938 limitations tax suit a suit for private

a statute of enacted Con- refund filing for the of tax gress sufficiently refunds. Justice restitution are similar to Justices, for all Breyer, writing nine ex- asking negatively warrant Irwin’s plained: phrased question: good Is there reason Congress rest for that not want taxpayers equi-

The their claim to believe did tolling upon Department tolling apply? table Irwin v. to equitable doctrine Affairs, U.S. 111 Veterans 498 362 But see Flora v. (1990), 112 L.Ed.2d 435 a 145, 153-154, S.Ct. case 4 L.Ed.2d 623 in which (1960) this Court considered time- v. (citing Curtis’s Administratrix employee’s liness of an charging lawsuit Fiedler, 2 Black L.Ed. 17 273 employer with discrimi- Government (1863)) (distinguishing common-law suit nation, violation Title VII against the tax collector from action of Rights Act of 42 Civil U.S.C. received); money assumpsit for had and § seq. 2000e et The Court found the Rose, George Moore Ice Cream Co. untimely, lawsuit but nevertheless tolled 382-383, 289 U.S. S.Ct. period. held limitations It Plumb, (1933); L.Ed. 1265 see also Tax equitable tolling” applies “rule of “to In Against Refund Suits Collectors of Government, against suits Revenue, Harv. ternal L.Rev. 685 687 way applicable” same that to Title (1947) (describing collector suit as a fic against private employers. VII suits solely designed to bring tion the Govern U.S., 94-95, 111 at S.Ct. 453. The court). ment into We can travel no say Court went on that “same however, road, further, along Irwin’s for presumption rebuttable toll- strong answering there are reasons for ing applicable to against private suits question government’s Irwin’s fa defendants also should suits vor. Id., against the United States.” at 95- sets forth its time limita- 96, 111 S.Ct. 453. emphatic in unusually tions form. Ordi- Irwin, taxpayers, pointing The argue narily fairly limitations statutes use principles equitable tolling that would simple language, one can often which they applied private have had sued de- plausibly containing implied read as an fendants, e.g., they sought had restitu- See, “equitable tolling” exception. e.g., private for “Money tion defendants 2000e-16(c) § (requiring suit Keigwin, Had Received.” See C. employment for discrimination be (2d Pleading Cases Common Law days of receipt filed of no- “[w]ithin ed.1934). They add given Irwin’s ”). tice of final action ... [EEOC] But language, there must be “presump- language simple. 6511 uses that is not periods tion” limitations tax re- highly It forth sets its limitations in against fund suits the Government can manner, that, linguis- detailed technical And, equitably they say, tolled. tically speaking, cannot be read easily “rebuttable,” “presumption,” while has containing implicit exceptions. that, been They rebutted. conclude tolled given Irwin, statutory the Ninth Circuit correctly “equita- * * ^[*] ble” reasons. an “equitable tolling” provision To read provisions, In evaluating argument, we are will- into these one would have to assume, ing exception favorably taxpay- implied tolling assume sake, only argument’s every ers but virtually appears. that a time number

939 rejecting application the of linguistic kind of ers concerns so work a To do would Moreover, interpreta- tolling unambigu- such an to a clear and equitable havoc. limitation: tolling, only pro- require ous statute of tion would limitations, but also substantive cedural aside, Indeed, if a court is free to cast recovery of limitations the amount —a equity, plain the of statute guise under for which have found tolling kind of we 3145(1) § the simply such as because precedent. 6511’s de- no direct Section “unfair,” then court views the statute as tail, language, the iteration its technical system of ceases to our procedural in both the limitations of representative democracy. function aas forms, the explicit and and substantive occur, longer and policy No will debates together, in- listing exceptions, taken of made, in the policy Legisla- choices be Congress did not in- dicate us Instead, aggrieved need party ture. an unmentioned, to read other tend courts only willing judge convince a rewrite exceptions into “equitable” open-ended, of equity. under the name the statute it the statute that wrote. approach might such ex- While be 349-50, 352, at 117 Brockamp, 519 U.S. particular lit- traordinarily efficient for added). (emphasis 849 S.Ct. damage of igant, the amount causes later, Begger v. yearA United States separation powers of mandate of our the 1862, 141 ly, 118 524 U.S. S.Ct. and the overall structure of Constitution (1998), fol Supreme 32 the Court L.Ed.2d government is immeasurable. our 12-year and Brockamp held lowed Ass’n, v. Club Ins. 473 Devillers Auto Quiet of contained the statute limitation (2005). 539, 556-57 Mich. 702 N.W.2d 2409a, Act, § 28 was not sub Title Ins. v. See also Secura Co. Auto-Owners so, ject tolling. doing Co., 382, 605 308 Ins. 461 Mich. N.W.2d held, tolling per is not “Equitable Court (2000). it is inconsistent with missible when violation, it is Absent constitutional Beggerly, text of relevant statute.” faithfully ascertain 48, 118 judges our role 524 at S.Ct. U.S. as written give and effect to laws Furthermore, Supreme as the Court must not succumb to Congress. We County cautioned in Baldwin Welcome comport the law to temptation to rewrite Brown, v. Center subjective notions of fairness with our (1984): 1723, 80 L.Ed.2d 196 S.Ct. Otherwise, en- our nation’s laws equity. requirements established Procedural meaningless. are See by Congress acted fed Congress gaining access BORK, THE TEMPTING H. ROBERT disregarded by are not to eral courts THE SE- AMERICA: POLITICAL OF vague sympathy par courts out of a (Free THE LAW DUCTION OF As stated Mo litigants. ticular we 1997). Press Silver, Corp. hasco v. 447 U.S. (1980), 65 L.Ed.2d so, I I to do would permitted Were run, experience teaches that long “in the Brockamp Beg of rationale re procedural strict adherence to the limitation 28 U.S.C. gerly legislature specified by the quirements specified by Congress its enact ad of evenhanded guarantee is the best issue, agree AEDPA. On this ment of ministration of law.” Dis following observations with arena, the Eastern District trict Court for Michigan In the Su- civil Michigan, which stated: preme separation pow- has cited expressly four differ- Dist. Court lists Calderon United States events, (Beeler), which deter- latest of ent the Cent. Dist. Cal. begins (9th mines when the limitations Cir.1997), F.3d 1288 n. 4 over- § The detail of to run. 28 U.S.C. grounds, ruled other 530 163 F.3d express its deter- § 2255 and direct and (en Cir.1998) banc), very the are two of limit begins mination when the time few attempt decisions even distin- not Congress indicates that did intend to guish Brockamp Beggerly. These and/or permit courts to read other unmentioned attempt circuit court decisions that to con- open-ended exceptions and precedential Brockamp fine the effect of into the statute. Beggerly quiet and to the tax and code States, F.Supp.2d v. United 6 Giles my view, persuasive. title cases are not In (E.D.Mich.1998), by Dunlap. 650 overruled the of our decisions sister circuits should effect, applies, in Giles the traditional and not be followed. widely-accepted statutory canon of con Irwin, First, unlike case present the is expressio struction unius est exclusio al- against not a civil action government the (the thing implies terius mention of one remedies, seeking civil but a collat- rather another). Cavanaugh the exclusion of See eral on a attack criminal conviction Dist., Local 409 v. Cardinal Sch. F.3d through for corpus. The (6th Cir.2005), v. 756 and Ohio Co. Neme collateral review of in- criminal convictions (6th Cir.1996). cek, F.3d 98 234 Consis considerations considerably volve that are with analysis Brockamp tent and than against govern- different actions § 28 Beggerly, 2255 should not be damages ment for or civil relief. other by the judiciary

rewritten it is a because detailed containing statute limitation Second, the subsequent Supreme specific tolling provisions agreed upon by of Brockamp Beggerly decisions and have Congress. scope clarified limited of Irwin. In States, Dunlap In v. our particular, Brockamp judicial held that distinguish did not cite or attempt permitted tolling Congress is when has Instead, Brockamp Beggerly. after specific enacted detailed and statute relying on Dep’t Irwin v. Veterans Af- Later, limitations. in Beggerly, the Su- fairs, 498 U.S. 112 S.Ct. preme judicial tolling may Court held that (1990), proposition L.Ed.2d for the imposed if contrary not be such tolling is presumption that there is rebuttable to the text of the Brockamp statute. equitable tolling applies civil actions clearly Beggerly restrain open-ended against government, summarily we judicial tolling use of and ap- envisioned that, concluded pro- because the limitation plied by some courts in all in which actions § vision of 28 U.S.C. 2255 is a statute of party. is a limitation, bar, rather jurisdictional than a Third, and most fundamentally, sep- subject judicial tolling. a foot- powers aration of by mandated our Consti- note, the Dunlap panel opinions cited when, tution is violated perceived rea- our sister circuits to the effect. For same judicial equity, sons of “fairness” or part, the most these deci- follow-the-leader branch rewrites unambiguous clear and sions contain little analysis and fail to ac- knowledge by laws enacted the legislature. the limits Without subsequent- of Irwin ly pretense, established and “for Supreme equity,” Court in reasons of Brockamp and Beggerly. Harris v. is what the courts imposing have done in Hutchinson, (4th Cir.2000), “equitable tolling” specific and de- so, part, only most 2254 do limitations enacted statute of tailed “extraordinary beyond circumstances” petitions. corpus for habeas Congress See, v. e.g., control. petitioner’s Satterfield (3d Cir.), Johnson, III. cert. de 434 F.3d 185 — — nied,. —, Nonetheless, Dunlap recognize that — Guarino, (2006); L.Ed.2d Cordle F.3d 1001 Cir. v. United (1st Cir.2005); Davis F.3d 46 v. John 2001), published opinions, subsequent (5th Cir.1998). son, court has concluded our § 2255 is period of 28 U.S.C. the unique following limitation test balances Our “equitable toll to the of subject doctrine considerations: binding ing.” preeedentially Until these (1) notice petitioner’s [actual] the lack of overruled, I am are bound decisions filing requirement; the of 6TH R. them. CIR. follow (2) lack of constructive petitioner’s the 206(c). knowledge filing requirement; of the (6th Orr, In Andrews v. 851 F.2d (3) in petitioner’s diligence pursuing the Cir.1988), a test we five-factor established rights; Later, in judicial tolling in civil cases. (4) prejudice respon- of the absence panel of this transferred Dunlap, dent; and corpus test to collater- this civil the (5) in petitioner’s reasonableness re- the doing In of criminal convictions. al review maining ignorant legal of the re- so, jurispru- from our civil we transferred filing his claim. quirement for incongruous that are considerations dence (citing Andrews Dunlap, 250 F.3d at 1008 particular, In under to our criminal law. (6th Cir.1988)). Orr, 851 F.2d 146 Andrews, the petitioner’s ignorance of Dunlap!Andrews fac- applying in his com- the excusing is a After law consideration case, I to a Ignorance present of the law come with the law. tors pliance opposite that criminal which is the of never been an excuse conclusion has Texaco, Short, majority. generally Inc. v. law. See reached 516, 546, 781, 70 102 S.Ct. 454 U.S. Actual Lack Notice 1. Petitioner’s (1982), Calif., and Lambert v.

L.Ed.2d of of Filing Requirement. 225, 228-29, 240, 2 (1957). addition, In under L.Ed.2d 228 of “at turn admits that Solomon of analysis, the “reasonableness” Andrews that, by operation of the knew 1997” he now be petitioner’s ignorance must grace judicially-created one-year period view, the my In reasonable- considered. courts, only had until by most he accepted law ignorance of the ness of accused’s corpus file his habeas have no relevance the collateral should one-year The petition. propriety of criminal convictions. review im grace many courts have reasons, Hyatt see posed alone for constitutional our court stands Significantly, (6th Cir. 207 F.3d pecu- our v. United employing the circuits within 2000), present at in the case is not issue peti- liar test to evaluate timeliness 26, 1997, petition Jpe other cir- because Solomon’s corpus. for habeas The tions late, even with the two months form of was over recognize some cuits period.2 grace of a § 2255 or benefit tolling to 28 28 U.S.C. period. reason, one-year grace judicially-created express opinion no on the 2. For Cir.2005). 2. The Petitioner’s Lack Construc- Solomon Knowledge Filing tive Re- explanation why offers no regarding quirement. “legal materials” could not have tak- been en or him. delivered to Because actual Solomon concedes knowl- “at edge filing of the deadline the turn of Finally, alleges Solomon that while 1997,” knowledge his constructive after prison he had telephone conversation then, time is not at issue. Before with the Clerk of the United States Dis- AEDPA’s statute of and tolling limitation trict Court District Southern exceptions provisions” are “clear that af- Solomon, According Ohio. the Clerk ad- him. forded constructive notice to Allen v. vised him file a “Notification of Intent Yukins, Cir.2004). to File a 2255 Motion.” I claim find this evidentiary not to be credible. It lacks The Diligence Petitioner’s Pursu- support contrary and is practice ing Rights. His custom of clerk not giving legal advice majority The concludes that Solomon event, to litigants prisoners. any in diligent pursuing rights. was his re- Allen, 403, F.3d at rejected we a claim disagree. spectfully Solomon waited over attorney’s that an legal erroneous advice years after four this court affirmed his equitable tolling: should lead petition conviction sentence to file his held, however, court has This that a view, corpus. my for habeas In Solomon’s petitioner’s reliance on the unreasonable delay of years over four enhance his “to and incorrect advice of his or her attor- law, knowledge raising of the while his ney ground not a equitable tolling. is diligent. level formal education” not Burt, v. Jurado 337 F.3d 644-45 As we stated in Stegall, Cook v. 295 F.3d (6th Cir.2003). directly Athough not on Cir.2002), petitioner would point, suggests equitable Jurado that have “never been this hurried state” had is not tolling appropriate in this case. not years he waited file his habeas Jurado, In the attorney (unintentionally) petition. petitioner; present misled in the addition, I am persuaded Solo case, attorney Alen’s simply admitted argument alleged mon’s his lack regarding that he was not an expert in federal of access to previously his furnished tran procedures. scripts. It apparent petition is Heller, See also United States v. 957 F.2d filed June transcripts (1st Cir.1992). 26, 27-28 not necessary filing. were for its See 4. Prejudice Absence Respondent. Shannon, (3d v.

Brown 322 F.3d Cir.2003); VanNatta, Lloyd v. 296 F.3d The record contains no evi- documented Cir.2002); 633-34 Donovan v. prejudice dence of actual govern- to the Cir.2002); (1st Maine, State However, ment. hardship some Bruton, sler v. 255 F.3d government likely Gas is because of the stale- (8th Cir.2001). fill-in-the-blank The ness of the evidence. habeas form petitioner used could easily

have been filed before the The Petitioner’s Reasonableness grace Remaining Ignorant Legal deadline of Requirements Filing Claim. Aso, as argued by government, transfers prisons between are routine and The petitioner’s “reasonableness of the Barlow, (to be expected. should Siggers-El v. ignorance” the extent that nonse- evaluated) not at issue can be quitur con- had actual petitioner

because and/or knowledge of the structive law. factors set forth balancing the five After Orr, I conclude Solo- v. Andrews his burden of estab- not sustained mon has tolling. See lishing grounds Allen, at 403.

IV. Day stated Finally, for the reasons — U.S. —, McDonough, (2006), hold I would also 164 L.Ed.2d not abuse its court did the district raising and decid sponte sua discretion defense that of limitation ing the statute Al timely assert. did not this issue Day decided though the Court brought pursu of a context 2254,1 rationale find its ant to 28 U.S.C. brought pur to actions equally applicable § 2255. suant to 28 U.S.C.

V. reasons, respectfully I dissent. For these of Solomon’s affirm the dismissal would corpus. untimely petition for habeas America, STATES UNITED Plaintiff-Appellee, ARMSTEAD, Clyde Defendant-

Appellant. No. 05-6480. Appeals, States Court Sixth Circuit. Sept. Argued: 6, 2006. and Filed: Nov. Decided

Case Details

Case Name: Solomon v. United States

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 2, 2006

Citation: 467 F.3d 928

Docket Number: 04-3650

Court Abbreviation: 6th Cir.