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Dorsey v. United States

United States District Court, D. New Jersey

April 19, 2018

ANDREA DORSEY
v.
UNITED STATES OF AMERICA UNITED STATES OF AMERICA
v.
Andrea DORSEY, Defendant.

          MEMORANDUM OPINION

          KEVIN MCNULTY, U.S.D.J.

         THIS MATTER comes before the Court upon a pro se petition to modify sentence pursuant to 28 U.S.C. § 2255 (16cv2294 ECF no. 1), as well as a motion under Fed. R. Crim. P. 36 to correct the judgment (13cr509 ECF no. 68)

         On March 24, 2014, I sentenced Ms. Dorsey to 87 months' imprisonment based on her plea of guilty to multiple bank robberies. (Crim. No. 13-509) The sentence included "restitution in the total amount of $59, 387.24." (Id., Judgment, 13cr509 ECF no. 58, at p. 6) No appeal was taken.

         On June 10, 2014, Ms. Dorsey filed a motion for relief from her restitution obligations. (13cr509 ECF no. 61) This was denied by Memorandum Opinion and Order filed on August 13, 2014 (13cr509 ECF no. 64).

         On December 14, 2015, Ms. Dorsey filed a motion to correct the judgment under Fed. R. Crim. P. 36. (13cr509 ECF no. 68) In it, Ms. Dorsey noted that she pled guilty to three bank robberies, and that the sums stolen amounted to approximately $44, 200. She states that the actual restitution awarded, totaling $59, 387.24, must therefore have been a clerical error. This motion was terminated in the criminal case by the clerk (Docket entry dated 8/26/2016). The reason is not clear, but it may have been terminated in favor of this § 2255 motion, filed under a separate civil number. In an abundance of caution, I will consider the Rule 36 motion in this opinion.

         On April 19, 2016, Ms. Dorsey filed this § 2255 motion under Civil No. 16-2294. The motion asserts two grounds:

(a) that Ms. Dorsey's Guidelines offense level was based on an erroneous dollar loss amount, exposing her to a higher sentence of imprisonment and denying her due process of law; and
(b) that counsel was ineffective in that he allowed her to be sentenced based on an incorrect restitution amount.

         I find that this § 2255 petition is untimely, and that equitable estoppel does not extend the one-year limitations period. In the alternative, I consider the merits of the motions and deny them.

         A. Timeliness of § 2255 motion

         Under 28 U.S.C. § 2255(f)(1) a § 2255 petition must be filed within one year after the judgment of conviction becomes final. In Ms. Dorsey's case, Judgment was entered on March 24, 2014. She did not file a notice of appeal. The judgment therefore became final when the 14-day deadline to file a direct appeal expired on April 7, 2014. See Fed. R. App. P. 4(b)(1); Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). The one-year statute of limitations in § 2255 therefore expired on April 7, 2015. This § 2255 petition was filed more than one year after that deadline, on April 19, 2016.

         On April 27, 2016, I entered a memorandum opinion and order to show cause why the petition should not be dismissed as untimely. It directed Ms. Dorsey to the relevant standard and explained what showing would be required:

In cursory fashion, Ms. Dorsey asserts that her § 2255 motion is timely because equitable tolling should be applied. She states that she "was prevented from asserting her rights and counsel did not exercise due diligence in preserving her right(s) in the claim of the monetary amount that the Movant has disputed." (Dkt. No. I at p. 13) For equitable tolling to apply, "[g]enerally, 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 circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citation omitted). "The diligence required for equitable tolling purposes is reasonable diligence, not maximum, extreme, or exceptional diligence." Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013) (citation omitted).
For equitable tolling to apply, Ms. Dorsey needs to explain with specifics how she was prevented from asserting her rights and that she has been pursuing her rights diligently. Her cursory statements on equitable tolling as stated in her § 2255 motion are insufficient. Therefore, this Court will order Ms. Dorsey to show cause why her § 2255 motion should not be dismissed as untimely. In any response that Ms. Dorsey may elect to file, she should explain with specific details what ...

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