The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
On December 13, 2002, this Court sentenced Michael Nittolo to a term of 151 months after he pleaded guilty to the charge of conspiracy to distribute in excess of 5 kilograms of cocaine, a crime that carries a statutory minimum of 10 years imprisonment. Mr. Nittolo pleaded guilty after approximately four days of trial. He had previously testified in a hearing on a motion to suppress, which the Court denied. After making findings that Mr. Nittolo had not been truthful in his testimony at the suppression hearing, the Court granted the government‟s motion to enhance the sentencing range based on obstruction of justice. The sentence was at the bottom of the sentencing guidelines range of 151 to 188 months.
Several years after the sentencing, Mr. Nittolo filed a petition under 28 U.S.C. §2255 asserting that he had just weeks before learned from his trial attorney that no appeal had been filed on his behalf. The government moved to dismiss, and on directions from the Court, thereafter filed an answer. The first defense was that the petition was untimely because it was filed in January 2006, over three years after the sentencing. The second defense was that the facts did not support the claim that Mr. Nittolo‟s lawyer failed to follow directions to file a notice of intent to appeal. In addition to the answer, the government presented an affidavit of Mr. Nittolo‟s lawyer, Alan Dexter Bowman, who represented that at the sentencing hearing there was specific information given to Mr. Nittolo that he had the right to appeal and to request the clerk of the District Court to file a notice of appeal on his behalf. Further, Mr. Bowman stated that he and Mr. Nittolo severed their relationship directly after the sentencing hearing; that had Mr. Nittolo asked him he would have filed a notice of appeal but under no circumstances would he have represented him; and that the first time he became aware of Mr. Nittolo‟s claims was when he received a letter from his former client in December, 2005, almost 3 years to the day after the sentencing hearing.
The applicable law is not in dispute; in a nutshell, the issue is whether equitable tolling saves this petition. By operation of the amendments to §2255 in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a one-year period of limitation applies, which runs from the date the judgment of conviction became final, or, under certain circumstances from a later date as set forth in the statute:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
The government correctly points to the appropriate legal analysis in determining timeliness, which appears in Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001). That case discusses equitable tolling, and concludes that it occurs "when the petitioner has in some extraordinary way been prevented from asserting his or her rights." Fahy, 240 F.3d at 244 (citation omitted). "In non-capital cases," such as Mr. Nittolo‟s, our Circuit has explained that "attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the "extraordinary‟ circumstances required for equitable tolling." Id. at 244 (citing cases).
Here, in the absence of an appeal, the government contends the expiration date for a timely §2255 petition is one year and 10 days after the sentencing hearing on December 13, 2002 and as a result, the filing on January 17, 2006 happened over two years after the last possible date that a timely petition could be filed. Put another way, instead of acting within the one-year statutory limitations period, Mr. Nittolo took 3 years. The government argues that Mr. Nittolo "has not described or demonstrated any behavior" that would be consistent with the applicable high standard requiring a showing of "extraordinary" circumstances. "Even by his own version of events," the government contends in its brief on pp. 6-7, "he made a request of his attorney to file an appeal, then waited three years to determine whether the instruction was followed" (emphasis in the original).
Mr. Nittolo argues in a "traverse/response" to the government‟s answer, that he is entitled to in effect sit on his claim for a full year, and that makes his filing only one year late -- in effect the first year isn‟t counted in assessing whether he exercised due diligence. This argument does not make sense in light of the facts asserted: that Mr. Bowman had been told to file a notice of appeal and that Mr. Nittolo had only recently learned, after contacting Mr. Bowman, that no appeal had been filed. Logically, if Mr. Nittolo‟s contention is true, the instruction to appeal was given the day of the sentence and for three years he was relying on Mr. Bowman to carry it out.
In effect every day of those three years is factored in when the Court considers whether Mr. Nittolo ...