The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED STATES OF AMERICA
CAUSE NO.: 2:13-CR-6-HAB
v.
2:19-CV-217
DAVID LEE HARDIN
OPINION AND ORDER
In early 2013, Defendant David Lee Hardin and his accomplice were arrested after robbing
a bank in Hammond, Indiana. Hardin pled guilty to armed bank robbery, see 18 U.S.C. § 2113(a),
and using/discharging a firearm in furtherance of that crime, see id. § 924(c). He was sentenced to
235 months’ imprisonment. Pending before the Court is the Defendant’s Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255(f)(4) (ECF No. 96), wherein the Defendant asserts that he
received ineffective assistance of counsel relating to his guilty plea on the §924(c) count of the
Indictment. The Government responded asserting that the Defendant’s Motion is untimely and
should be dismissed. (ECF No. 105). Because the Defendant filed his motion roughly five years
after his judgment became final, the Court agrees with the Government and will dismiss his Motion
as untimely.
ANALYSIS
Section 2255 allows a person convicted of a federal crime to seek to vacate, set aside, or
correct his sentence. This relief is available only in limited circumstances, such as where an error
is of jurisdictional or constitutional magnitude, or where there has been an error of law that
“constitutes a fundamental defect which inherently results in a complete miscarriage of justice.”
See Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal quotation omitted).
Motions to vacate a conviction or correct a sentence ask a court to grant an extraordinary remedy
to a person who has already had an opportunity of full process. Kafo v. United States, 467 F.3d
1063, 1068 (7th Cir. 2006).
A motion filed under 28 U.S.C. § 2255 is subject to a one-year limitations period that
runs from:
(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;
(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.
28 U.S.C. § 2255(f). Accordingly, a defendant seeking collateral review under § 2255 will have
one year from the date on which his judgment of conviction is final to file his petition, id. §
2255(f)(1); see also Dodd v. United States, 545 U.S. 353, 357 (2005), or one year from three
limited, alternative circumstances, id. § 2255(f)(2)–(4).
In this case, the Defendant’s judgment of conviction in the District Court was entered on
September 19, 2013. (ECF No. 50). Hardin appealed to the Seventh Circuit Court of Appeals, said
appeal being dismissed on August 8, 2014.1 (ECF No. 79); United States v. Hardin, 571 Fed.
Appx. 480, 480–81 (7th Cir. 2014). “[T]he Supreme Court has held that in the context of
postconviction relief, finality attaches when the Supreme Court ‘affirms a conviction on the merits
on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari
petition expires.’” Robinson v. United States, 416 F.3d 645, 647 (7th Cir. 2005) (quoting Clay v.
1 Defendant’s appellate counsel filed a motion to withdraw under Anders v. California, 386 U.S. 738 (1967). The
Seventh Circuit agreed with counsel that the anticipated challenges by Hardin were frivolous, granted counsel’s
motion to withdraw and dismissed his appeal. (ECF No. 79-1 at 2).
United States, 537 U.S. 522, 527 (2003)). The time for filing a certiorari petition expires “90 days
after entry of the judgment” of the United States Court of Appeals. Sup. Ct. R. 13.1. Since Hardin
did not seek to appeal beyond the Seventh Circuit, his judgment was final on November 6, 2014,
90 days after the Seventh Circuit’s decision. He filed his present Motion to Vacate on June 10,
2019, nearly five years later – clearly outside the one-year time frame.
Recognizing that his Motion would otherwise be untimely under § 2255(f)(1), the
Defendant contends that this Court should deem his Motion timely under equitable tolling
principles and because of newly discovered evidence, see § 2255(f)(4). Defendant, however,
makes competing assertions which fail to clearly articulate his basis for the court to deem the
Motion timely.
For instance, with respect to the timeliness of his petition he first notes that he originally
filed, through counsel, a timely Motion to Vacate, which counsel later moved to withdraw in April
2017, raising the same claims he raises in the present motion. (ECF Nos. 82, 92, 94). See Motion,
ECF No. 96 at 3: “Petitioner states his…petition should be deemed timely because he filed his
original 2255 in a timely manner raising both [] Alleyne2 and Johnson3 argument[s] in his original
2255 petition.” A paragraph later, the Defendant asserts that his Alleyne issue was never raised.
Id.: “The attorney contacted petitioner suggesting that the petition be dismissed to preserve
petitioner [sic] initial 2255, failing to raise the Alleyne issue.” In his concluding sentence, the
Defendant appears to suggest again that the Alleyne issue was raised and asks the Court to grant
equitable tolling “to reopen petitioner [sic] initial 2255 petition to address his Alleyne v. United
States…issue which was in fact filed in a timely manner in petitioner[sic] initial 2255 petition.” Id.
2 Alleyne v. United States, 570 U.S. 99 (2013).
3 Johnson v. United States, 135 S.Ct. 2551 (2015).
Despite these conflicting representations by the Defendant, this Court’s review of the
original § 2255 petition shows that the Defendant, through counsel, failed to make any argument
relating to Alleyne in that petition and certainly no argument similar to that made in this go-round,
i.e., that trial counsel should have raised Alleyne at sentencing as a ground to set aside his guilty
plea on that count. Rather, the sole basis for his original petition was the Johnson case and his
argument that armed bank robbery was not a predicate offense for a § 924(c) conviction. Thus, the
issue was never, as Defendant suggests, timely raised in this Court in any prior filing. The ultimate
question now is whether this failure in his initial, but withdrawn, § 2255 motion and the subsequent
delay between that motion and the present one defeat his claim that the limitations period should
be equitably tolled.
Equitable tolling is a basis on which a § 2255 movant can “avoid the bar of the statute of
limitations.” Clarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013). “[T]he threshold
necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule.” United
States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). To qualify for equitable tolling, a
petitioner must show: (1) that he has been pursuing his rights diligently; and (2) that some
extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560
U.S. 631, 649 (2010); Boulb v. United States, 818 F.3d 334, 339–40 (7th Cir. 2016). Because a
movant's diligence is “best evaluated in light of th[e] broader picture” of the conditions he faced,
the equitable tolling analysis begins with the extraordinary circumstances element. Socha v.
Boughton, 763 F.3d 674, 684 (7th Cir. 2014); see also Mayberry v. Dittmann, 904 F.3d 525, 530
(7th Cir. 2018). “‘Extraordinary circumstances’ are present only when an ‘external obstacle’
beyond the party’s control ‘stood in [its] way’ and caused the delay.” Lombardo v. United States,
860 F.3d 547, 552 (7th Cir. 2017) (quoting Menominee Indian Tribe of Wis. v. United States, 136
S. Ct. 750, 756 (2016)).
As the Government points out, the Defendant has not claimed any extraordinary
circumstance that was outside his control for the past five years. Abandonment by counsel, an
inability to access vital papers or a severe mental impairment are all potentially extenuating
circumstances. See Lou v. United States, No. 19 CV 3189, 2020 WL 3960437 (N.D.Ill. July 13,
2020) (citing authorities). Here, however, other than his contradictory statements about whether
the claim he wishes to now assert was originally asserted, the Defendant offers nothing in the way
of an explanation as to what, outside of his control, made him unable to file his claim sooner.
Further, to the extent that Defendant is asserting that he failed to discover until shortly
before the filing of the present petition that his Alleyne claim was never asserted in the original
petition, this argument implicates the due diligence analysis. To establish diligent pursuit, a
defendant must “demonstrate that he was reasonably diligent in pursuing his rights throughout the
limitations period and until he finally filed his untimely” motion to vacate. Carpenter v. Douma,
840 F.3d 867, 870 (7th Cir. 2016). To do so, the defendant must do more than simply show that
he intended to preserve his rights, he must take actual steps to vindicate them. Mayberry, 904 F.3d
at 531 (7th Cir. 2018). Defendant has submitted nothing and made no arguments from which the
Court could conclude that he made any diligent attempts to pursue his rights. Eighteen months
elapsed from the date the Defendant’s initial § 2255 petition was ordered withdrawn by the court
(ECF No. 93), until the filing of the present petition and Defendant sets forth no explanation
whatsoever for that delay.
Simply put, there are no grounds for equitable tolling; there is no evidence that the
Defendant has been pursuing his rights diligently, nor has he cited to “extraordinary
circumstances” that stood in the way of a timely filing. “[E]quitable tolling is rarely granted,”
Jones v. Hulick, 449 F.3d 784, 789 (7th Cir. 2006), and this case does not provide a sufficient basis
for the Court to do so. Accordingly, the Defendant’s Motion is DENIED as untimely.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings, the Court must
“issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
A certificate of appealability may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rule 11 of Rules Governing Section
2255 Proceedings. The substantial showing standard is met when “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted); Barefoot v. Estelle, 463 U.S. 880,
893 & n.4 (1983). “Where a plain procedural bar is present and the district court is correct to
invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Slack,
529 U.S. at 484.
No reasonable jurist could conclude that the Defendant’s Motion is timely. As discussed
above, the Defendant has no way around the statute of limitations, and he has not presented any
extraordinary circumstances justifying equitable relief. The Court will not issue the Defendant a
certificate of appealability.
CONCLUSION
For the reasons stated above, the Court DENIES the Defendant’s Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255(f)(4) (ECF No. 96) and DECLINES to issue a certificate
of appealability.
SO ORDERED on December 17, 2020.
s/ Holly A. Brady
JUDGE HOLLY A. BRADY
UNITED STATES DISTRICT COURT