APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. Nos. 1:09-CV-01049-JAP-KBM & 1:04-CR-00666-JAP-1)
The opinion of the court was delivered by: Hartz, Circuit Judge.
United States Court of Appeals
Elisabeth A. Shumaker
Clerk of Court
Submitted on the briefs:*fn1
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
Defendant Travis Denny, a federal inmate, seeks a certificate of appealability (COA) to allow him to appeal the district court's dismissal of his motion for relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (COA required to appeal dismissal of § 2255 motion). The court ruled that his motion was time-barred under the one-year limitations period of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See id. § 2255(f). Most of Defendant's challenges to that ruling are routine, but he raises a novel claim based on the AEDPA provision that delays the start of the limitations period until "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence," id. § 2255(f)(4). He argues that he should be given additional time because he discovered the pertinent facts only by exercising extraordinary diligence. We grant a COA on the timeliness issue but affirm the district court.
The magistrate judge conducted an evidentiary hearing on the timeliness of Defendant's § 2255 motion. We take the following from the testimony at the hearing and the record on appeal.
Defendant was charged in the United States District Court for the District of New Mexico with possession with intent to distribute 500 or more grams of cocaine, see 21 U.S.C. § 841(a)(1) and (b)(1)(B), after a federal agent seized cocaine from his compartment on a sleeper train. See United States v. Denny, 441 F.3d 1220, 1221 (10th Cir. 2006). His motion to suppress the cocaine was granted by the district court, but we reversed on appeal. See id. Defendant then pleaded guilty to the charge.
On September 26, 2007, Defendant was sentenced to 240 months' imprisonment, a substantial downward variance from the guideline range of 324 to 405 months. Before the marshals escorted him from the courtroom, he had a brief conversation with his then-counsel, Joe Romero. He told Romero that he wished to appeal. Romero responded that it would be unwise to appeal because he could ultimately receive an even longer sentence if the government also decided to appeal the downward variance. The result, as the magistrate judge found, was that "Defendant left the courthouse believing an appeal would be filed, and Mr. Romero left the courthouse believing he had dissuaded his client from pursuing an appeal." R. Vol. 1, at 88.
Not having received any communication from Romero about his appeal, Defendant, while in prison, called Romero's office in January or February of 2008 and learned that Romero was on military duty at Guantanamo Bay, Cuba. Romero had wound down his practice, retaining only a part-time paralegal. She forwarded emails to him, sent him a weekly log of his mail, and helped two other attorneys who rented space in the same building and had taken over some of his cases. Romero admitted that he "didn't have the most reliable system in the world while [he] was gone." Id., Vol. 2, at 138. The person with whom Defendant spoke was not the paralegal but an unidentified man, who said that he would have to email Romero to find out whether an appeal had been filed. Apparently, Defendant heard nothing further from Romero's office before Romero's return.
Defendant called the district-court clerk's office in late September 2008 and was told that no notice of appeal had been filed in his case. He contacted some lawyers, but he could not afford to hire one. By November, however, he had consulted an inmate in the prison law library who offered legal assistance. The inmate said that he would need additional documents to determine what Romero had filed. In January 2009 Defendant finally spoke with Romero, who had come back from Cuba, and was told that no notice of appeal had been filed. When Defendant called Romero again in June, Romero said that he would send Defendant's wife a disk containing his whole file and suggested that Defendant look into post-conviction relief. Defendant received his file in July or August 2009. The inmate in the prison library eventually prepared a § 2255 motion for Defendant, which Defendant submitted to the district court pro se.
Defendant's § 2255 motion was filed on November 2, 2009. Attached to the motion was a certificate of mailing stating that Defendant had presented it to prison authorities for mailing on October 20. The motion alleged that Romero had provided ineffective assistance of counsel by failing to file a timely appeal from Defendant's sentence. The government did not contest the ...