Terry Tucker v. United States , 249 F. App'x 763 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 1, 2007
No. 06-15656 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 05-20934-CV-DLG & 02-20794-CR-DLG
TERRY TUCKER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 1, 2007)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty to distributing cocaine, Terry Tucker was sentenced to
federal prison on April 23, 2003. He did not appeal the sentence. Nearly two
years later, on April 5, 2005, Tucker filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2255, contending that his trial counsel had been ineffective
by failing to file a timely appeal.1 The district court dismissed the petition as
untimely. Tucker appeals from that judgment, challenging the court’s decision
regarding timeliness and raising several peripheral issues as well.
Although the district court issued a certificate of appealability on four
questions, only one demands resolution: Did the trial court clearly err when it
adopted the magistrate judge’s finding that Tucker’s petition was untimely? The
answer is no; therefore, we affirm.
Under 28 U.S.C. § 2255, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), a prisoner moving to vacate his sentence
must do so within one year 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;
1
In his petition, Tucker alleged that his lawyer was ineffective in other ways, as well. We
need not discuss those allegations in the context of this appeal, which focuses solely on the
timeliness of Tucker’s habeas petition.
2
(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.
Tucker contends that his petition was timely under § 2255(4) because he filed it
within one year of discovering that his lawyer had not filed a direct appeal of his
sentence.
In determining whether a motion is timely under § 2255(4), a district court
must first consider whether the petitioner exercised due diligence in discovering
the facts underlying his claim. Aron v. United States, 291 F.3d 708, 711 (11th Cir.
2002). Due diligence does not require a litigant to undertake repeated exercises in
futility or to exhaust every imaginable option, but rather to make reasonable efforts
to discover the facts underlying each claim. Id. at 712. If the court finds that a
petitioner was not diligent in his efforts, it must proceed to consider when the
petitioner could have discovered the facts essential to his claim had he been acting
diligently. Id. at 711, n.1. So long as the petition is filed within one year of the
date on which the facts could have been discovered with reasonable diligence, the
petition will be timely.
3
This court reviews for clear error the question whether a petitioner exercised
due diligence in discovering the evidence upon which he bases his § 2255 petition.
Id. at 711. This standard requires us to affirm a district court's findings of fact
unless the record lacks substantial evidence to support the factual determinations.
Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002). In cases such as
this, where a magistrate judge has made a credibility determination based on an
assessment of witnesses’ in-court testimony, we “defer to the magistrate judge’s
determinations unless his understanding of the facts appears to be unbelievable.”
United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002).
Tucker argues that the magistrate’s credibility determinations, adopted by
the trial court, were inconsistent and therefore incredible. In support of this
argument, Tucker points to the fact that the magistrate judge twice revised and
supplemented his report and recommendation (once at the request of the district
judge and once sua sponte).2 Several of the facts set forth in earlier versions of the
2
On appeal, Tucker argues that the magistrate judge violated the Magistrates Act, 28
U.S.C. § 636(b)(1) and Rule 8(b) of the Rules Governing Section 2255 Proceedings by issuing
his third revised report and recommendation without first being asked by the district judge to
amend or supplement his report. Nothing in § 636(b)(1) prohibits magistrates from correcting
perceived errors in their reports and recommendations when mistakes come to light, and good
sense suggests that such a practice is both prudent and efficient. The district court reviewed each
version of the report and recommendation, as well as Tucker’s objections to each of the three
versions, before adopting the magistrate’s findings and denying Tucker’s habeas petition. The
entire process of determining the disposition of Tucker’s petition “t[ook] place under the district
court’s total control and jurisdiction, and the judge exercise[d] the ultimate authority to issue an
appropriate order.” Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006) (citing Thomas v.
4
magistrate’s report and recommendation contradict facts found in the final report
and recommendation, leading Tucker to conclude that all of the court’s factual
findings were unreliable. Of most concern to Tucker is the fact that in the original
report and recommendation, filed January 27, 2006, the magistrate found that
Tucker had asked his lawyer to file an appeal of his sentence and that the lawyer
did not do so, a fact that would constitute ineffective assistance per se. See
Peguero v. United States, 119 S. Ct. 961, 965 (1999). In the second supplemental
report and recommendation filed May 3, 2006, the magistrate rescinded the
finding, concluding instead that “counsel’s testimony that Tucker did not ask him
to file a notice of appeal [was] more credible than Tucker’s” testimony to the
contrary.
Although it is understandable that Tucker objects to the magistrate judge’s
unexplained change of mind, his focus is misplaced. The disposition of Tucker’s
habeas petition turns not on whether he asked his lawyer to file an appeal, but on
whether he filed his habeas petition within “one year of the date on which the facts
supporting the claim or claims presented could have been discovered through the
exercise of due diligence.” 28 U.S.C. § 2255(4). The magistrate judge was clear
in his finding that Tucker was not diligent in that regard, and the district judge did
Arn, 106 S. Ct. 466, 474 (1985)). We find no merit to Tucker’s challenge to the magistrate’s
action.
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not clearly err by adopting the magistrate’s findings of fact and the legal
conclusions that flowed from them.
During the evidentiary hearing held before the magistrate judge, Tucker
testified unequivocally that after he was sentenced he asked his lawyer to file an
appeal. The remainder of Tucker’s testimony, which addressed the steps he took
between sentencing and the filing of his § 2255 petition, was difficult to follow and
at times contradictory. Tucker testified that after his sentencing hearing he spoke
to his lawyer for ten minutes about his decision to appeal; a few breaths later, he
testified that the conversation lasted only five seconds. At one point in the
evidentiary hearing, Tucker testified that he began working with his cellmate on
his habeas petition between four and seven months after being sentenced, during
the time he allegedly believed his direct appeal was pending. Later, he testified
that he began work on the petition in earnest shortly after learning that his lawyer
had not filed an appeal; however, he was unable to recall when he discovered that
his appeal had not been filed. Tucker admitted that he made no effort to contact
his lawyer to discuss the status of any appeal, although he did try to obtain
unspecified paperwork from the lawyer. Tucker admitted that he made no effort to
contact the court to check on the status of appeal until October 2004 at the earliest.3
3
Although Tucker provided the court with a copy of a legal call request form dated
October 12, 2004, the form contained no notations indicating whether the call was ever made.
6
The transcript reveals that Tucker was unfamiliar with legal terminology and
may have had difficulty understanding some of the questions posed to him at the
evidentiary hearing. Nevertheless, it was not clearly wrong for the magistrate
judge to conclude that Tucker could not provide a coherent timeline of events
because he had not acted as diligently as he claimed. The magistrate’s credibility
determination was bolstered by the fact that although Tucker testified that he wrote
to the court immediately after learning that there was no appeal pending, he did not
produce copies of the letters he had allegedly written, and none were found in the
district court file.4
The basis for Tucker's ineffective assistance claim was the fact that his
lawyer did not file a timely appeal when allegedly asked to do so. The magistrate
judge emphasized that Tucker could have discovered this fact at any time
following the expiration of his appeal deadline in May 2003, by contacting the
4
As a peripheral matter, Tucker takes issue with a sentence in the magistrate judge's
second revised report and recommendation which read, "A member of the clerk's office at the
Court of Appeals advised that when mail is received and no appeal is pending, it is usually
returned to the inmate and sometimes forwarded to the district court . . . . That did not happen
in this case." The magistrate judge noted that there were no forwarded letters in Tucker's district
court file, and that no docket entries indicated that Tucker had inquired about the status of any
appeal.
Tucker suggests that the magistrate judge's reliance on the appellate clerk's out of court
statement violated his rights by preventing him from cross-examining the clerk about the
procedures for returning mail to prisoners. In the third revised report and recommendation,
however, the magistrate judge clarified that even if he had not consulted the clerk, his credibility
determination would have remained the same because of the contradictions and vagaries of
Tucker's testimony. Any reliance on the clerk's statements was, at worst, a harmless error.
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court or his lawyer. Tucker contends that the question should not have been when
it became possible for Tucker to discover the information, but when a reasonably
diligent person would have sought the information and found it. Tucker argues
that because the judge failed to specify a date by which a reasonably diligent
person would have discovered that no appeal was pending in the case, the court's
finding on diligence was flawed.
What Tucker overlooks is that "the due diligence inquiry is an individualized
one," Aron, 291 F.3d at 712. The magistrate was not required to speculate about
when a prototypical Diligent Person would have inquired about the status of a
prototypical appeal, but rather when a reasonably diligent person in petitioner's
situation would have taken action that led to the discovery that no appeal had been
filed.
As the magistrate judge pointed out repeatedly, Tucker's testimony regarding
his alleged diligence was vague and unconvincing. Tucker and his girlfriend
testified that they made repeated attempts to contact Tucker's trial lawyer, but they
asked for paperwork, not about the status of any pending appeal. Although
Tucker did send his lawyer one letter asking what had happened to "the appeal
briefs," he did not do so until February 7, 2005, a delay the magistrate found to be
inconsistent with diligent action. Moreover, at the evidentiary hearing, Tucker
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could not remember when he learned that there was no appeal, when he began
working on the habeas petition, or how long he waited to take action after learning
that there was no pending appeal. In the face of these individualized facts, it was
reasonable for the magistrate to conclude that a reasonably diligent person in
Tucker's position would have discovered that there was no pending appeal more
than one year before Tucker's habeas petition was filed.
The district court did not clearly err in its finding that Tucker did not
exercise reasonable diligence, which means that Tucker's petition is barred as
untimely. Consequently, we are unable to consider the underlying merits of
Tucker's claim that his lawyer was ineffective.
AFFIRMED.
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