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United States v. Dillard

United States District Court, D. Nevada

July 8, 2019

United States of America, Plaintiff
v.
Willie Allen Dillard, Defendant

          ORDER DENYING MOTION TO DISMISS AND ORDERING FURTHER BRIEFING [ECF NO. 75]

          JENNIFER A. DORSEY U.S. DISTRICT JUDGE.

         After serving 10 years in state prison, Willie Allen Dillard was transferred to federal custody to begin serving his 15-year sentence for being a felon in possession of a firearm. In his first days in federal custody, he learned of the United States Supreme Court's holding in Johnson v. United States.[1] Dillard was unintentionally left off the list of prisoners potentially eligible for relief under Johnson and who were therefore appointed counsel by this District. He immediately contacted the Office of the Federal Public Defender (FPD), which appeared on his behalf and filed Dillard's petition for relief under 28 U.S.C. § 2255.

         The government moves to dismiss Dillard's § 2255 motion as untimely. Dillard responds that the applicable statute of limitations was equitably tolled because he didn't know he was potentially entitled to Johnson relief until recently, and once he found out, he immediately took action to vindicate his rights. Because of the extraordinary circumstances that led to Dillard failing to learn about Johnson and Dillard's post-discovery diligence, I deny the government's motion to dismiss. But because the parties have not fully addressed the merits of Dillard's § 2255 motion, I order additional briefing.

         Background

         On March 9, 2011, Dillard pled guilty, without a plea agreement, to a single charge of being a felon in possession of a firearm.[2] Dillard's sentence was enhanced under the Armed Career Criminal Act (ACCA)[3] because he had three prior convictions for Nevada robbery, [4]which the U.S. Probation Office deemed a “violent felony” under the ACCA. The ACCA raised the 10-year maximum statutory sentence for Dillard's charge to life imprisonment and imposed a 15-year statutory minimum sentence. With the enhancements, Dillard's guideline range was 180-210 months, based on a total offense level of 30 and criminal history category of VI.[5]Without the enhancement, Dillard's guideline range would have been 77-96 months, based on a total offense level of 21 and criminal history category of VI.[6]

         Dillard objected to the ACCA sentencing enhancement, which the sentencing court overruled, and he received a 180-month sentence.[7] The Ninth Circuit affirmed Dillard's sentence on direct appeal in 2012.[8] Following his federal sentencing, Dillard served an unrelated state sentence in Nevada state custody but did not receive credit towards his federal sentence.

         At the time Dillard was sentenced, the ACCA defined a “violent felony” as:

Any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves the conduct that presents a serious potential risk of physical injury to another.[9]

         Subsection (i) is known as the “elements clause”; subsection (ii)'s list of offenses is known as the “enumerated clause”; and the final phrase in subsection (ii)-“otherwise involves conduct that presents a serious potential risk of physical injury to another”-is known as the “residual clause.” On June 26, 2015, the Supreme Court struck down the residual clause as unconstitutionally vague.[10] Then, on April 16, 2016, the Supreme Court held in Welch v. United States that Johnson announced a new “substantive rule” that applies retroactively to cases on collateral review.[11]

         Defendants eligible for relief under Johnson had one year from the date it was decided to file a § 2255 motion for collateral relief.[12] But because only a few months remained by the time the Court decided Welch, the Chief Judge of this district appointed the FPD to represent any convicted defendant who had been previously entitled to the appointment of counsel or was then indigent and might have a claim under Johnson.[13] For those defendants, the order directed the FPD to file an abridged § 2255 motion before the one-year statute of limitations expired and then supplement those motions no later than December 26, 2016.[14] Included with that order was a list of defendants (compiled by the United States Sentencing Commission) who were potentially eligible for Johnson relief.[15] For reasons that neither party explains, Dillard was left off this list and so was not appointed counsel.[16]

         Dillard completed his state sentence in November 2018 and was transferred to federal custody to begin serving his federal sentence. He arrived at FCI Victorville on January 31, 2019, where he first learned about Johnson. He immediately wrote to the FPD for assistance. The FPD received his letter in February, reviewed his case, and filed a notice of appearance the next day.[17] About two weeks later, the FPD filed Dillard's § 2255 motion.[18] When this case was reassigned to me, I ordered the government to respond, [19] and two days later, the government moved to dismiss Dillard's § 2255 motion as untimely.[20]

         Discussion

         The parties agree that, absent equitable tolling, Dillard's petition for relief is untimely. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires that a § 2255 motion be filed within one year of the Supreme Court recognizing a new retroactive rule, [21] and Dillard moved for relief nearly three years after Johnson. Where the parties disagree is in the application of equitable tolling to Dillard's case. The government argues that Dillard did not diligently pursue his rights and should not be allowed to bring his motion after nearly three years of inaction. Dillard responds that he didn't act because he didn't know that there was an available avenue of relief and that he immediately took action once he found out about Johnson.

         AEDPA's one-year statute of limitations is subject to equitable tolling.[22] A litigant seeking equitable tolling bears the burden of establishing two elements: (1) “‘that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way' and prevented timely filing.”[23] “Courts take a flexible, fact-specific approach to equitable tolling.”[24]

         The government first argues that Dillard's ignorance of the law is not a basis for equitable tolling. But this is not an ordinary ignorance-of-the-law situation. When the Supreme Court decided Welch in March 2016, opening the door for collateral attacks based on Johnson, very little time remained for a defendant to file a § 2255 motion. Many defendants who were potentially eligible for relief were represented at trial by appointed counsel, sentenced many years before, and no longer had counsel actively representing them. To ensure that these defendants were able to timely file, this District issued a general order appointing counsel to eligible prisoners based on the list from the Sentencing Commission. Dillard was left off the list for reasons unknown and, because he was in state custody, didn't hear about this new avenue of potential relief from others receiving assistance from the FPD's office. Being left off the list meant that Dillard didn't know he was potentially eligible for relief and no petition was filed on his behalf by the FPD. While simple ignorance of the law alone is not an extraordinary circumstance, I must use a “flexible” standard that accounts for all the circumstances faced and the cumulative effect of those circumstances when determining whether AEDPA's statute of limitations should be tolled.[25] Applying that flexible standard here, Dillard faced extraordinary circumstances beyond his control that prevented him from timely seeking § 2255 relief after Johnson.

         But the government's main argument against equitable tolling is that Dillard cannot show that he took any steps to diligently pursue his rights. “[T]he standard of diligence required of a petitioner seeking equitable tolling is ‘reasonable,' not ‘maximum feasible' care.”[26]“[R]easonable diligence does not require an overzealous or extreme pursuit of any and every avenue of relief.”[27] Rather, “[i]t requires the effort that a reasonable person might be expected to deliver under his or her particular circumstances.”[28]

         When faced with circumstances similar to Dillard's, district courts have found that AEDPA's statute of limitations should be tolled. In United States v. Wilson, the District Court for the District of Columbia held that equitable tolling applied to a prisoner's petition filed one day late.[29] Wilson, like Dillard, pled guilty to being a felon in possession of a firearm and was sentenced under the ACCA's residual clause.[30] When Welch was decided, the D.C. District Court appointed the local FPD to “represent any convicted defendant who previously had been entitled to the appointment of counsel and might have a claim under Johnson and Welch.”[31]Wilson didn't appear on the Sentencing Commission's list of potentially eligible prisoners and the FPD was unaware of his eligibility until the day after petitions were due.[32] The FPD filed an abridged § 2255 motion that day to preserve Wilson's right to challenge his sentence and then filed a supplemental motion several months later.[33] The D.C. District found that being left off the list was an extraordinary circumstance outside Wilson's control that entitled him to equitable tolling.[34]

         But even when faced with a delay longer than the single day in Wilson, district courts have tolled AEDPA's statute of limitations. In Salinas v. United States, the District Court for the Northern District of Texas found that tolling applied for a prisoner who filed a § 2255 motion under Johnson a year late.[35] Because of an error when inputting his release date into the prison system's record-keeping database, Salinas was left off the Sentencing Commission's list of Johnson-eligible prisoners, so the FPD didn't contact him about Johnson or file a motion on his behalf.[36] The court found that tolling was appropriate because the record-keeping error, which was outside of Salinas's control, prevented him from finding out about Johnson and receiving assistance from the FPD.[37] In considering diligence, the court noted that there was no reason for Salinas to file a § 2255 motion based on Johnson ...


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