2004 | Cited 0 times | D. Maine | November 24, 2004


Paul Mounts is serving a 240-month federal sentence afterpleading guilty to a single count indictment alleging that heconspired to distribute and possess with intent to distributecocaine and cocaine base. The United States has filed a motion todismiss (Docket No. 3) arguing first and foremost that the motionis barred by the 28 U.S.C. § 2255 ¶ 6 statute of limitation andthat Mounts has not demonstrated any legitimate reason forexcusing his untimeliness. For the reasons below, I recommendthat the Court GRANT the United States' motion and dismiss the28 U.S.C. § 2255 motion as time-barred.


This court's judgment in Mounts's case was entered on December28, 2000. On February 21, 2001, Mounts filed a notice of appealwhich was deemed timely filed by this court.1 In anopinion dated January 7, 2003, the First Circuit Court of Appeals affirmed Mounts's conviction and sentence. The mandate issued onFebruary 3, 2003, and was received by this court on February 27,2003.

Mounts's form 28 U.S.C. § 2255 motion is dated May 2, 2004;however, it was not received by this court until August 4, 2004.In dating and signing the motion Mounts offers an unusualelaboration: "I swear under penalty of perjury that I gave this2255 petition to the prison officials on May-2, 2004 for mailingto the court 28 U.S.C. 1746." Mount indicates in the body of thismotion that the date of "the result" from the First Circuit onhis direct appeal was February 3, 2003.

I am in agreement with the United States that — even givingMounts the benefit of my rather serious doubts concerning when hegave this § 2255 motion to prison officials and also assumingthat the prison mailbox rule would apply in this situation wherethere was an over three-month stretch before the clerk's officereceived the motion — Mounts's motion is untimely. Mounts did notseek certiorari review from the United States Supreme Court. TheUnited States Supreme Court unequivocally concluded, in Clay v.United States, "that, for federal criminal defendants who do notfile a petition for certiorari with this Court on direct review,§ 2255's one-year limitation period starts to run when the timefor seeking such review expires." 537 U.S. 522, 527-32 (2003).Clay stated that the time in which a petitioner has for seekingcertiorari expires ninety days after entry of the Court ofAppeals' judgment and the Court cited its own Rule 13(1). 525. That rule states: Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment.Sup. Ct. R. 13(1). The First Circuit's docket indicates: "1/7/03JUDGMENT entered." Counting from January 7, 2003, twenty-four days ran in January2003; twenty-eight days ran in February 2003;2 andthirty-one days ran in March 2003. This left seven of the ninetydays and, accordingly, Mounts's ninety-day period for seekingSupreme Court certiorari review expired on April 7, 2003. April7, 2004, was the anniversary date of when Mounts's § 2255 ¶ 6year began to run and this is the date by which he had to filehis § 2255 motion. See Rogers v. United States, 180 F.3d 349,355 (1st Cir. 1999); see also Lattimore v. Dubois,311 F.3d 46, 54 (1st Cir. 2002).3

The second of Mounts's two § 2255 grounds seems to be an effortto obtain § 2255 review in the event that the Court concludes, asI have, that Mounts's motion is facially untimely under 2255 ¶6(1). This ground does not identify a constitutional infirmitywith his underlying sentence or conviction but alleges thatprison officials have confiscated all of Mounts's legal papersand this interfered with his ability to file an Anders brief inhis direct appeal (or his opposition to appointed counsel'sAnders brief on appeal,? See Docket Summary, United States Court of Appeals) andforestalled his efforts to seek certiorari review by the UnitedStates Supreme Court.

In his reply to the motion to dismiss Mounts, in a conclusoryfashion, states vis-à-vis the statute of limitation argumentmade by the United States that the one-year period can be tolledin the instant case. (Resp. Mot. Dismiss at 7.) Mounts also"maintains that the Bureau of Prisons, through its various levelsof wardens, associate wardens, captains, secret undisclosed SISofficers, staff officers and guards have effectively impeded hisaccess to the courts as indicated by Petitioner's institutionalrecord." (Id. at 9.) Mounts bases this argument on what is nowcodified as 28 U.S.C. § 2254 ¶ 6(2) which would, if applied, meanthat his one-year did not commence to run until "the date onwhich the impediment to making a motion created by governmentalaction in violation of the Constitution or laws of the UnitedStates is removed, if the movant was prevented from making amotion by such governmental action." Mounts represents that hisrecord is marred by a series of institutional indiscretions forminor offenses, landing him in the Special Housing Unit, where hehas been without access to legal books, typewriters, copymachines, or an inmate's law clerk. (Resp. Mot. Dismiss at 9.) Healso claims that he has experienced retaliation in reaction tohis minor infractions, and states that he was transferred to anauxiliary facility during the United States' filing apropos thiscurrent § 2255 proceeding. (Id.) Mounts argues that thisdemonstrates that the § 2254 ¶ 6(2) impediment still exists andthat his motion should not be deemed untimely given that thesecircumstance were beyond his control. (Id. at 10.)

I do not believe that these representations about his traversein and out of segregation, unsubstantiated by any details in anaffidavit or prison records, demonstrate grounds for invoking subsection (2) of § 2255 ¶ 6 or equitabletolling, see Neverson v. Farquharson, 366 F.3d 32 (1st Cir.2004). Mounts had a full year to prepare what is in essence asingle issue habeas challenge.4 By his ownrepresentations, Mounts has been the perpetrator "ofinstitutional indiscretions for minor offenses," and, counter tohis characterization, any resulting segregation was not entirelya creature of circumstance beyond his personal control. Mountshad a chance to respond to the United States' motion to dismisswith concrete information about his argument for tolling orvis-à-vis government impediment and he has not adequately doneso even though he was given an extension of time and was able tocompose a fifteen page memorandum. See United States v.McGill, 11 F.3d 223, 225 (1st Cir. 1993) ("When a petition isbrought under section 2255, the petitioner bears the burden ofestablishing the need for an evidentiary hearing. In determiningwhether the petitioner has carried the devoir of persuasion inthis respect, the court must take many of petitioner's factualaverments as true, but the court need not give weight toconclusory allegations, self-interested characterizations,discredited inventions, or opprobrious epithets.") (citationsomitted). I certainly have no reason to believe on the recordbefore me that Mounts's first year in federal custody has been sodifferent from that of other § 2255 movants that it brings this §2255 ¶ 6(1) inquiry out of the realm of mine-run and into themurkier terrain of equitable tolling or a subsection (2)government impediment.5 CONCLUSION

For the reasons stated above, I RECOMMEND that the courtGRANT the United States' Motion to Dismiss (Docket No. 3) anddismiss the 28 U.S.C. § 2255 motion as time-barred.


A party may file objections to those specified portions of amagistrate judge's report or proposed findings or recommendeddecisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for whichde novo review by the district court is sought, together with asupporting memorandum, within ten (10) days of being served witha copy thereof. A responsive memorandum shall be filed within ten(10) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiver ofthe right to de novo review by the district court and to appealthe district court's order.

1. Mounts had filed a 28 U.S.C. § 2255 motion the day afterhis conviction which he withdrew on January 21, 2001.

2. The United States jumps from calculations based on the 2003calendar year for January to calculations based on the 2004calendar year for February, a leap-year year, and, so, the UnitedStates arrives at April 6, 2004, as being Mounts's § 2255 ¶ 6(1)deadline.

3. If you counted from the February 3, 2003, date that themandate entered then Mounts's § 2255 would have begun to run onMay 4, 2003, and by signing his petition May, 2, 2004, Mountswould have established a case for a timely motion. He wouldstill, it must be said, have a huge hurdle in proving hisentitlement to a three-month application of the prisoner mailboxrule. In announcing its conclusion that the prisoner mailbox ruleapplied to the filing of 28 U.S.C. § 2255 motions and § 2254petitioner, the First Circuit's Morales-Rivera v. United Statesdecision (addressing a time-lapse of similar proportions) vacatedthe judgment of the district court and remanded "for adetermination of whether the appellant deposited his petition inthe prison's internal mail system by the deadline using, ifavailable, the prison's legal-mail system." 184 F.3d 109, 111(1st Cir. 1999). The Court then dropped the following footnote: Nothing in this opinion is designed to prevent the government from contending, if this is its position, that the appellant did not utilize the prison mail system at all or, if available, did not use the prison's system for recording legal mail. Similarly, it is free to argue, if this is its position, that the original filing was not properly addressed due to the appellant's negligence, that no properly addressed filing was deposited in the prison mail system prior to the deadline, and that the appellant should be debarred under these circumstances from obtaining the benefit of the mailbox rule. As these issues have not been fully developed, we express no opinion whatever about their proper resolution.Id. n. 4. In a footnote in its motion to dismiss, the UnitedStates bemoans the fact that the envelope containing Mounts'smotion was discarded by the court's clerk's office (an actiontaken pursuant to safety protocols).

4. The allegations in the second ground do not attack thevalidity of Mounts's conviction or sentence but, at most, pertainto the validity of the outcome on direct appeal vis-à-vis theAnders brief and the validity of the resolution of this motionvis-à-vis the ability to respond to the United States' showing.Those sorts of claims do not attack the validity of theunderlying criminal conviction or sentence and are not properfodder for a § 2255 motion. If Mounts has credible demonstrableevidence of prison officials interfering with his right of accessto the courts, there are other legal mechanisms he might chooseto pursue.

5. Furthermore, the ground Mounts seeks to raise now is thathis attorney delivered ineffective assistance of counsel by notdefending Mounts adequately vis-à-vis the attribution of drugquantities to Mounts which resulted in a sentence that ran afoulof Apprendi v. New Jersey, 530 U.S. 466 (2000). This is asimple ground to present, as the Apprendi issue was an issuerecognized by this court at sentencing and by the First Circuiton direct appeal. See United States v. Mounts, No. 01-1389,2003 WL 42268, *1 (1st Cir. Jan. 7, 2003) (observing that thiscourt concluded that because a drug quantity had not been chargedin the indictment or proven to the jury beyond a reasonabledoubt, under Apprendi v. New Jersey, 530 U.S. 466 (2000), themaximum sentence Mounts could receive was 20 years"). The FirstCircuit also alerted Mounts to his ability to present ineffectiveassistance claims in a § 2255 motion. Id. ("To the extent thatMounts is claiming ineffective assistance of counsel, the factualrecord concerning Mounts' allegations that his attorney misledhim about the consequences of pleading guilty or his right toproceed to trial is not sufficiently developed to permit reliablereview on direct appeal. Our rejection of Mounts' ineffectiveassistance claim is without prejudice to his presenting thatclaim on collateral review under 28 U.S.C. § 2255.") (internalcitation omitted). Mounts's chance of succeeding on the merits of such a claim, towhich Mounts adds Blakely v. Washington, ___ U.S. ___,124 S. Ct. 2531 (June 24, 2004), are dim, see Thomas v. United States,Civ. No. 04-243-P-H, 2004 U.S. Dist. LEXIS 23575, 4-6 (D. Me.Nov. 19, 2004), especially in view of the fact that Mounts'sattorney actually successfully advocated for Mounts apropos whatwas then the understanding of the reach of Apprendi.

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