United States District Court, D. New Jersey
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)
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.
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).
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.
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;
(b) that counsel was ineffective in that he allowed her to be
sentenced based on an incorrect restitution amount.
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.
Timeliness of § 2255 motion
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.
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 ...