RonRico Simmons, Jr. v. United States ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0305p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RONRICO SIMMONS, JR., ┐
Petitioner-Appellant, │
│
> No. 19-1757
v. │
│
│
UNITED STATES OF AMERICA, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
Nos. 1:14-cr-20628; 1:18-cv-12557—Thomas L. Ludington, District Judge.
Argued: August 5, 2020
Decided and Filed: September 11, 2020
Before: ROGERS, KETHLEDGE, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Jo-Ann Tamila Sagar, HOGAN LOVELLS US LLP, Washington, D.C., for
Appellant. Patricia Gaedeke, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan,
for Appellee. ON BRIEF: Jo-Ann Tamila Sagar, Neal Kumar Katyal, HOGAN LOVELLS US
LLP, Washington, D.C., for Appellant. Patricia Gaedeke, UNITED STATES ATTORNEY’S
OFFICE, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
NALBANDIAN, Circuit Judge. Deadlines matter, especially in habeas cases. So we
require good excuses to overcome them. One valid excuse is when the government itself creates
an unconstitutional impediment to a prisoner’s timely filing of a motion to vacate his sentence
No. 19-1757 Simmons v. United States Page 2
under 28 U.S.C. § 2255. That is what RonRico Simmons argues happened to him here. But he
fails to allege facts that would establish that the supposed impediment to his late filing actually
prevented him from filing earlier. Without a valid excuse, he filed his § 2255 motion too late.
We AFFIRM.
I.
RonRico Simmons, Jr. pleaded guilty to: (1) “conspiring to possess with intent to
distribute and to distribute a substance containing heroin . . . in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A),” and (2) “caus[ing] others to use a house to use, store[,] and distribute controlled
substances,” in violation of 21 U.S.C. § 856(a)(1) and contrary to 18 U.S.C. § 2. (R. 37, Plea
Agreement, PageID 140–41.) On September 8, 2016, the district judge entered judgment against
Simmons. Simmons did not file a notice of appeal. Almost two years later on August 13, 2018,
Simmons moved to vacate his sentence under § 2255. On the same day he also moved to grant
timeliness of his 28 U.S.C. § 2255 motion under Section 2255(f)(2).
Under Section 2255(f), the limitation period for moving to vacate begins to run on the
latest of four dates. 28 U.S.C. § 2255(f). Subsection one usually governs, meaning Simmons
had one year after his conviction became final to file his motion to vacate. Id. § 2255(f)(1). The
parties do not dispute the district court’s finding that Simmons’s judgment became final on
September 22, 2016, his deadline to appeal (fourteen days after the district court entered
judgment). So he had one year after that—until September 22, 2017—to file his motion to
vacate. But he did not file until August 13, 2018. So Section 2255(f)(1) would ordinarily bar
Simmons’s motion.
Recognizing this, Simmons tried to rely on Section 2255(f)(2). That section says “[t]he
limitation period shall run from . . . 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[.]”
28 U.S.C. § 2255(f), (f)(2). Simmons explained that, after his sentencing in 2016, he returned to
state custody to finish serving state time. He was in Michigan Department of Corrections
No. 19-1757 Simmons v. United States Page 3
(MDOC) custody until December 2016 and served time at Wayne County Jail for about nine
months after that.
Simmons claimed that the law libraries in “MDOC custody” and at Wayne County Jail
did not have federal law materials. In his motion to grant timeliness he generally said he “had no
access to a legal library; 2255 Petition; his legal materials or the Rules Governing 2255
Proceedings[.]” (R. 44, Mot. to Grant Timeliness, PageID 215.) But later in this motion he
specified that he “had no access to [a] federal law library; legal materials; assistance by prison
authorities in the preparation and filing of meaningful legal papers; and no access to the Rules
Governing 2255 Proceedings and AEPDA [sic] statute of limitations[.]” (Id. at 217.) According
to him, these inadequacies served as an impediment in violation of the Constitution that
“prevented him from having the ability to timely pursue and know the timeliness for filing a
2255 Motion[.]” (Id.) He claims he did not gain access to these resources until September 27,
2017 when he entered federal Bureau of Prisons (BOP) custody. Thus, the statute of limitations
did not start to run until Simmons had access to those resources that facilitated his ability to file a
Section 2255 motion. And because he filed within a year of gaining such access (on August 13,
2018), his motion was timely.
In reply to the government’s opposition to his motion, Simmons again explained that he
lacked access to “some of his legal materials” or any federal law until September 27, 2017, when
he entered federal custody. But he also admitted (after the government pointed it out) that he
arrived at a federal facility—Federal Detention Center (FDC) Milan—on August 29, 2017. He
said the court should hold an evidentiary hearing to assess the timeliness of his filing.
Simmons attached affidavits from himself and Benjamin Foreman, the jailhouse law clerk
helping him with his post-conviction relief. In his affidavit, Simmons said: “While at the Wayne
County Jail, I merely had access to state law, however as the result of me being convicted in
federal court state law was of no benefit to me.” (R. 52, Reply, PageID 325.) He mentioned
nothing about his time in MDOC custody before January 2017. He said FDC Milan (where he
arrived on August 29, 2017) only had a library computer, with no physical library or legal
assistants to help. The lack of guidance “made it rough [for him] to begin legal research not
having ‘any idea’ where to start.” (Id. (emphasis added).) He again emphasized that he “did not
No. 19-1757 Simmons v. United States Page 4
have the opportunity and access to a federal Law Library and assistance until September 27,
2017[.]” (Id.)
In Benjamin Foreman’s affidavit, he explained that he had been a law clerk at prisons for
years and that:
[V]ery few guys could navigate themselves through the Law Library system
without the guidance of me or our other Law Clerk Mr. Bennett so, I can totally
understand how Movant Simmons, Jr. waited til he arrived at FCI-Milan to seek
the aid of an experienced Law Clerk to help him.
(Id. at 327 (emphasis added).) Foreman also explained that the only way to obtain Section 2255
materials while at FDC Milan was to request them from the law library technician, but “you have
to know what you need.” (Id.) Simmons requested nothing since he “knows nothing at all about
federal law and how to research [and] identify errors.” (Id.)
And in supplemental briefing, Simmons again asserted that during his time in state
custody he “had no access to a law library (with federal case law and ADEPA [sic] statute of
limitations period); 2255 Petition; his legal materials or the Rules Governing 2255
Proceedings[.]” (R. 60, Suppl. Br., PageID 366.) He had “‘no federal law’ or ‘federal forms’”
and no “computer that accesses federal law cases.” (Id. at 370.) He said he only had access to
state law, and no one provided legal assistance.
The magistrate’s final report and recommendation recommended denying the motion for
timeliness. The district judge adopted the report and recommendation, accepting the magistrate’s
finding that Simmons’s “allegations were broad and generalized, and that he has not sufficiently
alleged what specific legal materials he was missing and how the lack of those materials
prejudiced his ability to pursue his rights under section 2255.” (R. 64, Order, PageID 419.) But
the district judge noted the difficulties in deciding this Section 2255(f)(2) issue, especially with
the lack of binding precedent. So he issued a certificate of appealability for us to assess:
(1) “whether the lack of access to legal materials can support relief under 2255(f)(2)” and
(2) “how specific a petitioner must be in alleging which legal materials he lacked access to and
how that impacted his ability to pursue his rights under section 2255.” (Id. at 419–20.)
No. 19-1757 Simmons v. United States Page 5
II.
The Supreme Court has long recognized a constitutional right of access to courts.
See Lewis v. Casey, 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821, 828 (1977).
In Bounds, the Court held that “the fundamental constitutional right of access to the courts
requires prison authorities to assist inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or adequate assistance from persons
trained in the law.” Bounds, 430 U.S. at 828. In Lewis, the Court clarified that Bounds focused
on the right of access to courts—not a “freestanding right to [an adequate] law library or legal
assistance[.]” 518 U.S. at 350–51. What’s more, a state need not “enable the prisoner to
discover grievances, and to litigate effectively once in court.” Id. at 354. The constitutional right
to access courts does not impose such additional burdens on state prisons. Id. A state need only
provide adequate tools for inmates to “attack their sentences, directly or collaterally,”
or “challenge the conditions of their confinement.” Id. at 355. Bounds and Lewis’s emphasis of
a right to court access suggests that a lack of federal materials for a prisoner to challenge his
conviction or confinement or a lack of a legal assistance program may constitute
“impediment[s] . . . by governmental action in violation of the Constitution[,]” depending on the
other circumstances. 28 U.S.C. § 2255(f)(2); see id. § 2244(d)(1)(B).
The circuits that have addressed this question agree that a lack of access to certain legal
resources may constitute an impediment under Section 2255(f)(2) or Section 2244(d)(1)(B), the
Section 2244 counterpart to Section 2255(f)(2). In Whalem/Hunt v. Early, the Ninth Circuit
addressed impediments for Section 2244(d)(1)(B). 233 F.3d 1146 (9th Cir. 2000) (en banc) (per
curiam); see Shelton v. United States, 800 F.3d 292, 294 (6th Cir. 2015) (reading Section
2244(d)(1)(B) and Section 2255(f)(2) as “virtually identical” (quoting Ramos-Martinez v. United
States, 638 F.3d 315, 321 (1st Cir. 2011))). The court held that there could be “circumstances
consistent with [the] petitioner’s petition and declaration under which he would be entitled to a
finding of an ‘impediment’ under § 2244(d)(1)(B).” Id. at 1148. The petitioner claimed that the
law library in his prison did not have a copy of the Antiterrorism and Effective Death Penalty
Act (AEDPA)—which established the relevant statute of limitations—until two years after his
judgment of conviction became final, and he knew nothing about the AEDPA one-year statute of
No. 19-1757 Simmons v. United States Page 6
limitations. Id. at 1147. The district court dismissed the petition as time-barred, but the en banc
court reversed and remanded, finding that the petitioner’s allegations potentially suggested an
impediment. Id. at 1147–48.
Similarly, in Egerton v. Cockrell, the Fifth Circuit concluded that “[t]he absence of all
federal materials from a prison library (without making some alternative arrangements to apprise
prisoners of their rights) violates the . . . right . . . [of] access to the courts[,]” and “an inadequate
prison law library may constitute a state created [sic] impediment that would toll the AEDPA’s
one-year limitations period.” 334 F.3d 433, 438–39 (5th Cir. 2003). And in Estremera v. United
States, the Seventh Circuit held that a “[l]ack of library access can, in principle, be an
‘impediment’ to the filing of a collateral attack.” 724 F.3d 773, 776 (7th Cir. 2013). But
“[w]hether a prisoner has demonstrated the existence of a state-created impediment is highly fact
dependent.” Funk v. Thaler, 390 F. App’x 409, 410 (5th Cir. 2010) (per curiam). “To hold that
the absence of library access may be an ‘impediment’ in principle is not necessarily to say that
lack of access was an impediment for a given prisoner. ‘In principle’ is a vital qualifier.”
Estremera, 724 F.3d at 777.
The parties do not cite authority from this Circuit establishing that the lack of federal
materials in a prison can constitute a constitutional violation, nor have we, apparently, rejected
that view either. For purposes of this case, we need not define the contours of such a right. We
assume that a lack of federal materials for a prisoner to challenge his conviction or confinement,
combined with a lack of a legal assistance program, constituted an unconstitutional impediment
under Section 2255(f)(2).
III.
We next address what the prisoner must allege for Section 2255(f)(2) to apply.
We review de novo whether a Section 2255 motion is time-barred. See Wooten v. Cauley,
677 F.3d 303, 306 (6th Cir. 2012) (finding the same in the context of a habeas petition under
28 U.S.C. § 2241).
Typically, a prisoner must file his Section 2255 motion within one year of his
conviction’s becoming final. By its terms, however, Section 2255(f)(2) effectively creates an
No. 19-1757 Simmons v. United States Page 7
exception to this rule by stating that the one-year period can begin on a later date—when an
unconstitutional impediment to filing the motion is removed—provided that “the movant was
prevented from making a motion by such governmental action[.]” Thus, under the statute, an
unconstitutional impediment is not enough, in and of itself, to delay the triggering of the statute
of limitations. A movant must initially allege facts that will establish that the impediment
actually prevented the movant from filing the motion.
That the statute requires a causal relationship between the impediment and not filing the
motion is not controversial. We have said, in unpublished cases, that Section 2244(d)(1)(B),
Section 2255(f)(2)’s counterpart, “requires a causal relationship between the unconstitutional
state action and being prevented from filing the petition” and that the prisoner must allege the
relevant facts. Winkfield v. Bagley, 66 F. App’x 578, 582–83 (6th Cir. 2003) (quoting Dunker v.
Bissonnette, 154 F. Supp. 2d 95, 105 (D. Mass. 2001)); see also Webb v. United States, 679 F.
App’x 443, 449 (6th Cir. 2017) (finding that a prisoner did not “show a causal relationship”
between the governmental action and the prisoner’s inability to file a Section 2255 motion on
time).
Other circuits have arrived at similar conclusions. In Krause v. Thaler, for instance, the
Fifth Circuit held that a prisoner “fail[ed] to even allege sufficient facts to show that he was
prevented from timely filing” his habeas petition. 637 F.3d 558, 562 (5th Cir. 2011). The
prisoner alleged that the library at his facility was inadequate and therefore an impediment to
filing under Section 2244(d)(1)(B). Id. at 560, 562. But the Fifth Circuit concluded that the
prisoner needed to allege more than that. He did “not at any point allege facts as to why the
transfer facility’s lack of legal materials prevented him from filing a timely habeas application.”
Id. at 561. For example, he did not “allege that he had no knowledge of AEDPA’s statute of
limitations before he was transferred to the . . . facility which he claims had an adequate library.”
Id.So to invoke Section 2255(f)(2), it is the prisoner’s responsibility to allege (1) the
existence of an impediment to his making a motion, (2) governmental action in violation of the
Constitution or laws of the United States that created the impediment, and (3) that the
impediment prevented the prisoner from filing his motion. See, e.g., Krause, 637 F.3d at 560–
No. 19-1757 Simmons v. United States Page 8
61. Thus, Simmons had to allege why his supposed impediment prevented him from filing
earlier. In other words, to satisfy Section 2255(f)(2), he had to allege a causal connection
between the purportedly inadequate resources at the state facilities and his inability to file his
motion on time.
Here, we find that Simmons failed to adequately allege or explain how the supposedly
inadequate state law libraries or lack of legal assistance had any bearing on his failure to file
while in state custody. All he said in his motion was that he “had no access” to certain legal
resources and that this lack of access “prevented him from having the ability to timely pursue
and know the timeliness for filing a 2255 Motion[.]” (R. 44, Mot. to Grant Timeliness, PageID
217.) He did not allege any facts connecting the facilities’ alleged lack of resources and his
failure to file his motion within the normal one-year limitation period. He only provided the bare
conclusory statement that the lack of access “prevented him” from filing earlier. But did
Simmons try to go to the state library and get materials even once? See Estremera, 724 F.3d at
777 (asking whether the prisoner even consulted a library before filing his petition). Did he seek
out a legal assistant to help? As the Seventh Circuit pointed out: “If he didn’t want or need a
law library during the year after his conviction became final, its unavailability (if it was
unavailable) would not have been an impediment.” Id.
Simmons did not, strictly speaking, need to answer any particular question in his
allegations, but he needed to allege something reflecting a plausible causal connection. We are
left with no factual allegations that the supposed impediment prevented him from filing.
“Because [Simmons] makes no attempt to explain how the transfer facility’s alleged deficiencies
caused him to untimely file his [motion], his claim amounts to little more than an incognizable
complaint that his prison lacked an adequate library.” Krause, 637 F.3d at 562 (citing Lewis,
518 U.S. at 351). Thus, with only his mere conclusory assertion, Simmons failed to adequately
claim that the alleged lack of resources prevented him from filing.1
1Simmons also filed sworn affidavits from himself and his jailhouse law clerk, but those are even less
helpful. In his affidavit, Simmons only references Wayne County Jail, not “MDOC custody” at all. So he failed to
address whether MDOC custody lacked the same materials. And he mentioned even less in his affidavit about
prevention than he did in his motion to grant timeliness. What’s more, the affidavit from Foreman, the jailhouse law
clerk, does not help Simmons because Foreman said, “I can totally understand how Movant Simmons, Jr. waited til
No. 19-1757 Simmons v. United States Page 9
Requiring Simmons to allege facts that would establish the causation between the
impediment and his failure to file is not, as he argues, inconsistent with the general legal
principle that defendants typically bear the burden to show that a plaintiff’s claim is outside a
statute of limitations. See Griffin v. Rogers, 308 F.3d 647, 652–53 (6th Cir. 2002) (holding that
“the party asserting statute of limitations as an affirmative defense has the burden of
demonstrating that the statute has run”). Here, Simmons himself recognized that he had a
timeliness problem by raising the issue in his first filing before the government could point out
that he had filed his motion late. So he started this case by rebutting a legitimate statute of
limitations defense. And this makes sense.
It would be inconsistent with the text of Section 2255(f) and the context of (f)(1) to make
the government allege that an impediment did not exist and did not cause an untimely
filing. That’s because the one-year period will, as a default, be triggered by Section 2255(f)(1).
See Hueso v. Barnhart, 948 F.3d 324, 335 (6th Cir. 2020) (noting that “the default start date for
the limitations period” is “one year after a final judgment”). The “judgment of conviction”
referenced in Section 2255(f)(1) is the only event mentioned in Section 2255(f) that will
necessarily occur in every case. Thus the government, consistent with general statute of
limitations principles, must allege that the motion falls outside of the one-year statute of
limitations as triggered by Section 2255(f)(1) (unless the prisoner makes the argument first, as
occurred here). See Griffin, 308 F.3d at 652–53. The possible, later triggering dates listed in
Section 2255(f)(2), (f)(3), and (f)(4) may occur in certain cases or they may not. But forcing the
government to make allegations that disprove those dates in every case makes no sense.
he arrived at FCI-Milan to seek the aid of an experienced Law Clerk to help him.” (R. 52, Reply, PageID 327
(emphasis added).) If anything, this comment suggests that the allegedly inadequate state resources were not what
prevented Simmons from filing sooner—rather his decision to wait did.
No. 19-1757 Simmons v. United States Page 10
In sum, we hold that a prisoner is at least required to allege a causal connection between
the purported constitutional impediment and how the impediment prevented him from filing on
time. Simmons did not. His conclusory assertion that the lack of access “prevented him” from
filing is not enough.2
* * *
For these reasons, we AFFIRM.
2
Because Simmons failed to adequately allege a causal connection, an evidentiary hearing is unnecessary.