Submitted: May 19, 2016
from United States District Court for the Northern District
of Iowa - Sioux City
WOLLMAN, LOKEN, and BENTON, Circuit Judges.
November 2011, Tuwane English pleaded guilty to conspiring to
distribute crack cocaine. The district court varied downward
from an advisory guidelines range based on English's
status as a career offender and sentenced him to 180 months
in prison. As English did not appeal, his conviction became
final on April 12, 2012. See Anjulo-Lopez v. United
States, 541 F.3d 814, 816 & n.2 (8th Cir. 2008).
September 16, 2013, English filed a pro se motion to
vacate his sentence under 28 U.S.C. § 2255. After an
evidentiary hearing, the district court denied the
motion, concluding that it was time-barred by the applicable
one-year statute of limitations, see 28 U.S.C.
§ 2255(f), and, alternatively, that English was not
entitled to relief on the merits. English appeals. The
district court granted a certificate of appealability on two
issues: whether the statute of limitations should be
equitably tolled, and whether English received ineffective
assistance of counsel when counsel "incorrectly informed
Mr. English of the potential 180 month sentence." We
conclude the § 2255 motion was time-barred and therefore
filed his § 2255 motion five months after the one-year
statute of limitations expired. The limitations period is not
jurisdictional and is therefore subject to the doctrine of
equitable tolling. See Holland v. Florida, 560 U.S.
631, 645 (2010); Muhammad v. United States, 735 F.3d
812, 815 (8th Cir. 2013). "[E]quitable tolling affords
the otherwise time-barred petitioner an exceedingly narrow
window of relief." Jihad v. Hvass, 267 F.3d
803, 805 (8th Cir. 2001). A movant seeking equitable tolling
must establish: "(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing." Muhammad, 735 F.3d at 815, quoting
Holland, 560 U.S. at 649. We review a denial of
equitable tolling de novo, but review underlying
fact findings for clear error. United States v.
Hernandez, 436 F.3d 851, 854-55, 858 (8th Cir.),
cert. denied, 547 U.S. 1172 (2006).
conclude that English failed to establish that he diligently
pursued the rights protected by § 2255 relief. To be
eligible for equitable tolling, he must show "reasonable
diligence, " not "maximum feasible diligence."
Holland, 560 U.S. at 653 (noting that the petitioner
filed his pro se petition the day he learned the
one-year limitations period had expired). English argues he
is entitled to equitable tolling because of the following
letter he wrote to Judge O'Brien on March 3, 2013, almost
six weeks before the one-year limitations period expired on
I am writing you to let you know that I am getting inaffect
[sic] counsel from my Attorney/Public Defender I've wrote
several letter to him this is my only way to correspond with
him because I'm still in the hole because of my
Protective Custody I can't call him and letter are the
only way to talk to him and he doesn't respond to me at
all I have court issues coming up soon and I really need to
speak with him before hand and he wont talk to me I've
been in the hole 9 months and I've wrote him at lease
once a month and he hasn't responded at all to me period
Is there any way you could appoint me a new public Defender
because I do [not] know what more I could do about the
situation I've even had my wife my father and a few other
family members call him for me and he just will not talk to
me I am looking for help to resolve this matter please.
Order being appealed, Judge O'Brien stated: "The
Court forwarded this letter to Mr. English's trial
counsel, Mike Smart. Mr. English wrote a similar letter on
March 17, 2013, stating that he had an 'emergency'
and needed to talk to his public defender. The Court also
forwarded that letter to Mr. Smart." Attorney Smart
testified at the evidentiary hearing, but neither counsel
asked whether he received these letters forwarded by the
district court and, if so, how he responded.
evidentiary hearing, English testified that his March 3
letter was "his request for a [§ 2255] petition to
be filed." The district court properly ruled that the
letter to the court could not be construed as a pro
se motion for § 2255 relief. See Rule 3,
Rules Governing Section 2255 Proceedings; cf. Beery v.
Ault, 312 F.3d 948, 950-51 (8th Cir. 2002), cert.
denied, 539 U.S. 933 (2003). Thus, the question is
whether the March 3 letter entitles English to equitable
tolling of the § 2255 statute of limitations.
primary claim asserted by English in his untimely § 2255
motion was ineffective assistance of trial counsel in
promising he would receive a 120-month sentence if he pleaded
guilty. English knew the facts relating to that claim when
the district court imposed a 180-month sentence. Yet he
waited seventeen months to raise the claim in a § 2255
motion. There was nothing in the March 3 letter to alert the
district court, or attorney Smart if he received the
forwarded letter, that English wished to file a § 2255
motion. As the district court explained:
In early 2013, Mr. English was hoping to get a Rule 35 Motion
from the Government. He was also trying to get out of
administrative segregation (aka 'the hole') at
prison. Finally, Mr. English had an ongoing issue regarding
fee payments in the District Court for Nebraska arising out
of his prior federal conviction in that state. . . . Based on
the text of Mr. English's letters, about court issues
coming up soon, it seems Mr. English could have been hoping
to talk to Mr. Smart about any one of those three issues.
However, there is no indication that Mr. English was hoping
to talk to Mr. Smart about Mr. Smart's past (alleged)
ineffective assistance or that he wanted Mr. Smart to file a
did not testify that he asked Smart to file a § 2255
motion, and he made no showing of diligence other than to
write letters to the district court complaining of unrelated
problems. Moreover, even if the forwarded letters should have
alerted the court or attorney Smart that English wished to
discuss filing a § 2255 motion, English failed to
explain at the hearing why he waited six months after writing
the letter before he filed a pro se motion -- in
proper form -- accusing Smart of ineffective assistance in
the guilty plea process.
long-established principles, [English's] lack of
diligence precludes equity's operation." Pace v.
DiGuglielmo, 544 U.S. 408, 419 (2005). Accordingly, we
conclude that the district court did not err in ruling that
English's § 2255 motion was time-barred. We need not
address the district court's alternative denial ...