United States v. Cody Carlsen , 441 F. App'x 531 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-35857
Plaintiff - Appellee, D.C. Nos. 4:09-cv-00033-SEH
4:07-cr-00031-SEH
v.
CODY GORDON CARLSEN, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted June 6, 2011
Portland, Oregon
Before: FISHER, GOULD, and PAEZ, Circuit Judges.
Defendant-Appellant Cody Gordon Carlsen, a federal prisoner, appeals the
district court’s denial of his motion for habeas relief under 28 U.S.C. § 2255.
Carlsen argues that he received ineffective assistance of counsel at sentencing, and
that his sentence must therefore be vacated. The district court denied Carlsen’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion on the ground that it was barred by the one-year statute of limitations
contained in 28 U.S.C. § 2255(f)(1). In the alternative, the district court held that
Carlsen’s petition should be denied on the merits. We reverse the district court’s
denial of Carlsen’s petition and remand for an evidentiary hearing on the issue of
equitable tolling. We also conclude that the court erred in its alternative merits
ruling.
A. Equitable Tolling
The judgment of conviction in Carlsen’s federal prosecution was entered on
November 15, 2007. Because Carlsen did not appeal his sentence, the judgment
became final two weeks later, on November 29, 2007. See Fed. R. App. P.
4(b)(1)(A). Carlsen’s filed his federal habeas petition roughly sixteen months
later, on April 3, 2009.
The federal habeas statute contains a one-year statute of limitations. 28
U.S.C. § 2255(f)(1). A habeas petitioner, however, is entitled to equitable tolling
of the statute of limitations if he can show: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way.”
Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)); accord Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.
1999). If a habeas petitioner makes “a good-faith allegation that would, if true,
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entitle him to equitable tolling,” then he is entitled to an evidentiary hearing on the
issue of equitable tolling. Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006)
(quoting Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir. 2003)) (internal quotation
marks and emphasis omitted).
Carlsen has alleged facts that demonstrate his reasonable diligence in
pursuing habeas relief. Specifically, Carlsen alleges that he made “repeated
efforts” to contact his attorney “both by mail and phone” to resolve issues related
to his § 2255 motion. The record also reflects that Carlsen filed a letter with the
district court expressing concern with his sentence. Moreover, it appears that
Carlsen filed his § 2255 motion within eighteen days of receiving necessary
information from his attorney. These facts, if true, demonstrate Carlsen’s
diligence. See Holland, 130 S. Ct. at 2565 (concluding that a habeas petitioner
diligently pursued his claim where he “wrote his attorney numerous letters seeking
crucial information and providing direction [and] repeatedly contacted the state
courts, their clerks, and the [state bar association]”); Miles, 187 F.3d at 1107(holding that a petitioner exercised diligence where he submitted his petition
seventeen days after he was made aware of the deadline and delay was caused by
prison officials).
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We also hold that Carlsen has alleged two theories, either of which, if true,
constitute “extraordinary circumstances” and entitle him to equitable tolling.
a. Inadequate Access to Legal Resources
Carlsen alleges, and the government does not dispute, that he was in transit
and without access to legal resources for the first six months of his federal
sentence. “Deprivation of legal materials is the type of external impediment for
which we have granted equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d
1008, 1013 (9th Cir. 2009) (citing Lott v. Mueller, 304 F.3d 918, 924–25) (9th Cir.
2002)); see also Roy, 465 F.3d at 973–75; Whalem/Hunt v. Early, 233 F.3d 1146,
1148 (9th Cir. 2000) (en banc) (per curiam).
If Carlsen’s allegation of inadequate access to legal resources is true, then
the one-year statute of limitations was suspended until Carlsen had access to legal
materials. United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (“Principles of
equitable tolling usually dictate that when a time bar has been suspended and then
begins to run again upon a later event, the time remaining on the clock is calculated
by subtracting from the full limitations period whatever time ran before the clock
was stopped.”); see also Nino v. Galaza, 183 F.3d 1003, 1006–07 (9th Cir. 1999)
(applying this method to calculate the period of equitable tolling for a habeas
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petition). In other words, the one-year statute of limitations began running anew
on the date that Carlsen first had access to legal materials.
To calculate the period of equitable tolling in this case, we first note that
Carlsen’s sentence was imposed on November 15, 2007, and that Carlsen alleges
that he was without legal materials for the first six months of his sentence. If
Carlsen’s allegation is true, then the one-year limitations period started to run on or
around May 15, 2008, and Carlsen’s petition would have been timely when it was
filed on April 4, 2009. Thus, Carlsen is entitled to an evidentiary hearing on the
question of whether and for how long he was without access to legal materials. If
his allegation is true, his petition must be considered timely.
b. Attorney Misconduct
Carlsen also alleges repeated and unsuccessful efforts to consult with his
attorney regarding his habeas petition. Carlsen’s allegations, if true, could entitle
him to equitable tolling on the ground of egregious attorney misconduct. Although
an attorney’s mere negligence is not sufficient to earn equitable tolling, Frye v.
Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001), “instances of attorney misconduct”
that are “far more serious” than negligence can entitle a petitioner to equitable
tolling, Holland, 130 S. Ct. at 2564; see also Spitsyn v. Moore, 345 F.3d 796, 800
(9th Cir. 2003).
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Because Carlsen has alleged two distinct theories that, if true, would entitle
him to equitable tolling, he must be afforded an evidentiary hearing on the issue of
equitable tolling.
B. Merits1
At the time of his federal prosecution, Carlsen had started to serve—but had
not yet completed—a state sentence for reckless endangerment. It is undisputed
that because this state offense was considered relevant conduct that increased
Carlsen’s federal Guidelines range, Carlsen was entitled to the application of U.S.
Sentencing Guidelines § 5G1.3(b) at sentencing. Had § 5G1.3(b) been properly
applied, the district court would have been instructed to: (1) credit the time Carlsen
served in state custody; and (2) order that Carlsen’s federal and state sentences be
served concurrently. Carlsen’s attorney did not advocate at sentencing for the
application of § 5G1.3(b). Carlsen argues that this error amounted to ineffective
assistance of counsel.
To succeed on an ineffective assistance of counsel claim, a defendant must
demonstrate that: (1) “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment;”
1
For the benefit of the district court and the parties on remand, we address
the district court’s alternative merits holding.
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and (2) “the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). The government concedes—as it
must—that Carlsen’s has satisfied the first prong of the Strickland analysis because
his attorney’s failure to advocate for the application of a relevant sentencing
Guideline fell “outside the wide range of professionally competent assistance.” Id.
at 690.
Carlsen also satisfies the prejudice prong of the Strickland analysis because
§ 5G1.3(b) directs the sentencing court in determining the advisory Guidelines
range to: (1) credit the defendant’s federal sentence for the time served in state
custody; and (2) impose a sentence to run concurrently with the defendant’s state
sentence. Had Carlsen’s attorney made the district court aware of its obligations
under § 5G1.3(b), there is a reasonable probability that Carlsen would have
received a shorter sentence. We therefore conclude that the district court erred in
its alternative holding that Carlsen’s § 2255 motion should be denied on the merits.
3. Instructions on Remand
On remand, the district court is directed to conduct an evidentiary hearing as
soon as reasonably possible on whether Carlsen is entitled to equitable tolling on
either of the two grounds advanced in his petition—(1) inadequate access to legal
resources; or (2) egregious attorney misconduct—and on whether he acted with
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reasonable diligence. If the district court determines that Carlsen is entitled to
equitable tolling, it is instructed to grant Carlsen’s petition and resentence Carlsen
as soon as practicable. If in resentencing Carlsen the district court imposes the
same sentence, relying on the sentencing factors in 28 U.S.C. § 3553(a), it shall
explain its reasons for varying upward from the advisory sentencing Guidelines
range. If the district court determines that Carlsen is not entitled to equitable
tolling, it shall also state what sentence it would have imposed if it had granted
Carlsen’s § 2255 motion.
VACATED AND REMANDED.
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