PEEK v. United States

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARLON PEEK, Civil Action No. 20-9747 (KSH)

Petitioner,

v. OPINION

UNITED STATES OF AMERICA,

Respondent.

This matter has been opened to the Court by the government’s motion to dismiss Marlon

Peek’s § 2255 petition under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) (Civ. No. 20-9747, ECF No. 11) and the parties’ related motions. Peek opposes the

motion to dismiss in a pro se filing and through his habeas counsel. (ECF No. 14; Crim. No. 15-

609, ECF No. 141.) The Court has considered the parties’ arguments and the relevant record. For

the reasons explained in this opinion, the Court denies the government’s motion to dismiss and

provisionally grants Peek’s request for equitable tolling.

The Court also grants the government’s motion for a limited waiver of attorney-client

privilege with respect to Peek’s ineffective assistance claims (ECF No. 41) and directs the

government to file a full answer addressing the merits of Peek’s ineffective assistance claims. The

Court also permits Peek to file a reply brief through his habeas counsel.

The Court denies without prejudice Peek’s motions to file a supplemental brief and to have

his appointed counsel placed on standby or to proceed pro se. (ECF Nos. 39-40.) The Court also

denies as moot Peek’s motion to compel judgment on the motion to place his counsel on standby

or proceed pro se. (ECF No. 46.)

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

Peek is serving a 17-year sentence for a series of bank robberies and carjackings he

committed or attempted to commit in the spring of 2015. He is currently serving his sentence at

Otisville FCI.1

a. The Competency Proceedings

At his arraignment on December 16, 2015, Peek made outlandish claims about his

relationship with his appointed federal public defender (“first counsel”). (See ECF No. 67

Arraignment Tr. at 3:8-4:8.) The Court raised concerns about Peek’s competency and ordered a

competency evaluation pursuant to 18 U.S.C. §§ 4241, 4247. (See ECF No. 27.)

Peek was first evaluated at FMC Devens by Dr. Chad Tillbrook who concluded in his report

that Peek was not currently competent to stand trial. (See ECF No. 59, ¶ 4.)

On June 9, 2016, the Court appointed Criminal Justice Act counsel (“second counsel”) to

represent Peek in place of first counsel. (ECF No. 41.)

The government requested a second competency evaluation, which the Court granted on

September 23, 2016. (See ECF No. 44.) Dr. Samantha DiMisa at the Metropolitan Correctional

1 See Federal Bureau of Prisons Inmate Locator, available at

https://www.bop.gov/locations/institutions/otv/ (last visited Nov. 20, 2023).

Center of New York evaluated Peek and concluded in her report that Peek was not currently

competent to stand trial. (See ECF No. 44 at ¶ 7.)

Peek’s second counsel requested a third competency evaluation without objection from the

government, which the Court granted on July 18, 2017. (ECF No. 59.) As explained below, Dr.

Oropeza found that Peek was likely malingering and competent to stand trial (or enter a plea).

The Court held the competency hearing on October 2, 2017, and heard testimony from the

three psychologists who had examined Peek for competency, Dr. Tillbrook, Dr. DiMisa, and Dr.

Oropeza. Peek was present in court throughout the competency hearing and was taking Lithium

and Remeron.2 (See ECF No. 62, Competency Hearing Tr. at 7-8.)

Dr. Oropeza met with Peek at various stages of his criminal proceedings and had the

opportunity to evaluate Peek’s interactions with second counsel. At the competency hearing, Dr.

Oropeza testified, among other things, that “initially I was retained by . . . [Peek’s first counsel],

to assess his mental state at the time of the alleged offenses. I saw him in December 2015 and

again in January 2016, for that purpose.” (Competency Hearing Tr. at 135:18-21.) Dr. Oropeza

then testified that he saw Peek approximately three times in 2017 (after second counsel had taken

over Peek’s representation) “for the purpose of [assessing] competency to stand trial.” (Id. at

135:23-136:2.)

Dr. Oropeza also testified, “I think likely [Peek] was malingering.” (Id. at 137:11-12.) On

examination by government, Dr Oropeza stated that he administered two tests to Peek in late 2015

2 Lithium is a mood stabilizer medication. See American Association of Psychiatric Pharmacists,

Medication Fact Sheet Lithium, available at https://www.nami.org/About-Mental-

Illness/Treatments/Mental-Health-Medications/Types-of-Medication/Lithium, last visited Nov.

20, 2023. Remeron is a brand name for Mirtazapine, which is an antidepressant medication. See

NAMI.org, Mirtazapine (Remeron), available at https://www.nami.org/About-Mental-

Illness/Treatments/Mental-Health-Medications/Types-of-Medication/Mirtazapine-(Remeron)

(last visited Nov. 20, 2023).

and early 2016 that gave invalid results, which may indicate exaggerating or making up symptoms.

(Id. at 151:1-14.)

After considering the evaluators’ reports, the parties’ arguments, and all the testimony, this

Court found Peek competent to stand trial on the record on December 13, 2017, and entered an

order on December 27, 2017. (See Crim. No. 15-609, ECF Nos. 27, 61, 68, 69.)

b. Peek Signs a Plea Agreement and Pleads Guilty

Peek signed a plea agreement on February 12, 2018. (ECF No. 75, Plea Agreement.) Peek

pleaded guilty to (i) seven counts of bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2; (ii)

one count of attempted bank robbery with a dangerous weapon in violation of 18 U.S.C. §§

2113(a), 2113(d), and 2; (iii) one count of carjacking in violation of 18 U.S.C. §§ 2119(1) and 2;

(iv) three counts of attempted carjacking in violation of 18 U.S.C. §§ 2119(1) and 2; (v) one count

of use of a firearm during a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2;

and (vi) one count of forced accompaniment in attempt to avoid apprehension in violation of 18

U.S.C. §§ 2113(e) and 2. (ECF No. 84, Amended Judgment.)

At the plea hearing, which took place on March 19, 2018, the Court noted that Peek had

been tested and evaluated for mental competency. (ECF No. 94, Plea Tr. at 5-6.) Peek reported

that he was taking Lithium and Risperdal (Risperidone)3 twice a day. (Id. at 6:17-7:2.) He stated

that the medications were helping him and that he “was able to understand the proceedings even

though [he was] on medication.” (Id. at 7:5-9.) Peek confirmed that he fully discussed the charges

and the case with second counsel, that he was “satisfied with [second counsel’s], representation,

3 According to the American Association of Psychiatric Pharmacists, Risperidone (brand name

Risperdol) is a second-generation antipsychotic or atypical antipsychotic used to treat

schizophrenia. See Medication Fact Sheet Risperidone, available at

https://www.nami.org/About-Mental-Illness/Treatments/Mental-Health-Medications/Types-of-

Medication/Risperidone-(Risperdal) (last visited Nov. 20, 2023).

and advice” and that he had reviewed the plea agreement with [second counsel]. (Id. at 7:15-20,

8:12-14.) The Government set forth the terms of the plea agreement at length. (Id. 8-17.) The Court

checked with Peek repeatedly to confirm that he understood. He stated that he did, including that

he was pleading guilty to crimes that collectively carried a mandatory minimum of 17 years’

imprisonment, advisory guidelines suggesting a sentence potentially greater than 20 years’

imprisonment, and a statutory maximum of life in prison. (Id. 11:19-21, 12:23-13:7, 15:13-17:16,

32:24-33:1, 33-36, 46:8-15.) Peek reaffirmed at the end of the recitation of the plea agreement’s

terms that he had signed it and discussed it with second counsel. Peek stated that he had discussed

the plea agreement with second counsel thoroughly, that she had explained it to him, that he had

asked her questions about the agreement, and she had answered them, that he understood what was

happening, that he was there to enter a guilty plea, and that that was a big decision. (Id. at 17-21,

30.) Peek also stated that he had no questions for his counsel or the Court at that time. (Id. at 19:13-

15, 28:22-29:3.) Peek averred that he was pleading guilty because he was in fact guilty, and that

he was hoping to get the mandatory minimum sentence but understood that he might not. (Id.

36:20-38:4.) He further stated that he believed the plea agreement was a fair deal, that he had

discussed it with second counsel, and that he had faith in her. (Id. at 38:5-12.) Peek also stated that

he understood that in pleading guilty he was giving up his right to a jury trial and all its attendant

rights, including to present evidence, or not present evidence, at that trial. (Id. at 39:15-41:6.) Peek

also acknowledged that he had given up his right to appeal or attack his sentence under certain

circumstances but that he was not precluded from “challenging the competency and/or effective

representation of [his] attorney.” (Id. at 45:16-22.)

After Peek admitted to the factual basis for his guilty plea, this Court found that “he is fully

competent and capable of entering an informed plea based upon his answers, his demeanor, and

the types of questions that were asked of him. I find that he is aware of the nature of the charges.

He is aware of the consequences of pleading guilty. And his plea of guilty is knowing and

voluntary.” (Id. at 64:11-17.) The Court accepted Peek’s guilty plea.

The Court sentenced Peek on August 10, 2018, to 17 years’ imprisonment, which was the

mandatory minimum sentence under the statutes of conviction, followed by five years of

supervised release. (ECF No. 96, Sentencing Tr.) Second counsel obtained an additional

psychological examination of Peek by Dr. Catherine Barber in mitigation of sentencing, on which

this Court relied in determining the sentence. (Sentencing Tr. at 8, 13, 22, 23, 26.) As part of her

sentencing presentation, second counsel also noted that Peek had earned his GED while in federal

pretrial detention, emphasizing how difficult that is with all the “distractions” in a county jail. (Id.

5:23-6:1, 11:10-14.) This Court granted Peek a variance down to the mandatory minimum, based

in part on a finding that Peek was under the influence of alcohol and drug use and suffering from

some degree of mental illness when he engaged in his crimes, as well as on the Court’s observation

that Peek had been able to form a productive working relationship with second counsel.4 (See id.

at 23-26.)

The Court entered an Amended Judgment on August 17, 2018. (ECF Nos. 83, 84.) Peek

did not file a direct appeal.

a. Peek Files his Original § 2255 Petition Approximately 11 Months Late

On or about July 23, 2020, Peek filed his original § 2255 petition pro se and raised two

claims of ineffective assistance of counsel against his second counsel. (Civ. No. 20-9747, ECF No.

4 Per the parties’ plea agreement, the United States also moved to dismiss Counts Twelve,

Fourteen, and Sixteen of the Indictment, and the Court granted dismissal of those charges. (Id. at

36.)

1.) He alleged that that his second counsel erred in retaining Dr. Oropeza to evaluate him and also

failed to investigate and pursue an insanity defense.5 (Id. at 4-8.)

With leave of Court, the government filed a motion to dismiss Peek’s § 2255 petition as

untimely on June 1, 2021. (Id., ECF Nos. 6-7, 11.) Peek opposed the motion to dismiss and argued

that he is entitled to equitable tolling or a hearing on the issue. (Id., ECF No. 14.). The parties also

filed additional briefing. (Id., ECF Nos. 18-19.)

b. Peek’s Allegations and Evidence in Support of Equitable Tolling

Peek contends that at the time of his plea and sentencing, he was in “delusional state of

mind.” (ECF No. 14 at 4.) Peek further alleges that he answered the questions from the Court in

the manner he and second counsel “rehearsed beforehand[.]” (Id.) Peek acknowledges that he was

aware that Dr. Oropezo had interviewed him on at least two prior occasions before being retained

by second counsel, but he contends that he is not an attorney and only has a tenth-grade education.

(Id. at 4-5.) Peek also alleges that he was taking several medications to treat depression and a

delusional disorder. (Id. at 5.)

According to Peek, his medications were suddenly changed by the Bureau of Prisons

(“BOP’) in September 2018, and prison officials did not consult him about that change. (Id.) The

change resulted in “very serious adverse side effects.” (Id.) Peek alleges that he experienced the

following side effects from his mental health medications:

Mr. Peek experienced excruciating headaches, loss of appetite, [and]

extreme tiredness. The medicine would render [Peek] nearly

unconscious or in an incompacitated [sic] state. Peek would literally

fall asleep all day from 6:30 AM-11:45 AM, 12:30 PM-8:30 PM.

Mr. Peek literally remained this way until around March 2020.

5 Peek also alleges in passing that second counsel failed to uncover his history of sexual abuse or

inform the Court about it. He appears to allege that he would have received a lower sentence if

his second counsel had provided this information to the Court.

(Id.)

Peek further alleges that he discontinued his mental health medications in March 2019

against the advice of his family and medical staff due to the severe side effects described above

and because he lacked insight about his condition and believed that his mental health had

significantly improved. (See id.) Peek further contends that he attempted to prepare his § 2255

petition in July 2019, but he was unable to complete it due to his mental illness. (Id. at 6.)

In his reply brief, Peek also states the following:

Mr. Peek’s inability to engage in abstract reasoning necessary to

understand basic legal concepts, combined with his psychiatric

disorders, along with the various different side effects derived from

the many different medications which Mr. Peek was taking made it

virtually impossible for him to file or seek assistance in filing a

habeas petition between August 2018-March 2020.

(ECF No. 19 at 2.) Peek further claims he was unable to manage his affairs during this same time

period and was having “psychotic episodes.” (Id.) He contends that he still suffers from severe

depression and also suffers from “long haul” COVID-19 symptoms. (Id.)

In his opposition brief, Peek also alleges that the COVID-19 pandemic, which began in

mid-March 2020, caused the prison to operate under 24-hour lockdowns, and these lockdowns

prevented him from completing and filing his § 2255 petition until July 23, 2020. (ECF No. 14 at

6.)

To support the severity of his mental illness, Peek relies on Dr. DiMisa’s report,6 dated

November 29, 2016, which diagnosed him with Delusional Disorder, Persistent Depressive

Disorder, and Antisocial Personality Disorder. (ECF No. 9, Peek’s Exhibit A.)

6 As noted above, Dr. DiMisa was one of the three psychologists who evaluated Peek for

competency prior to his guilty plea.

Peek also provides signed letters from two inmates at FCI Cumberland. Inmate George

Owens describes Peek as being in a “zombie state” and sitting in a chair “drooling” when he arrived

at FCI Cumberland on September 25, 2018. (ECF No. 14-2, Peek’s Exhibit B at 2.) Inmate Philip

Whitehurst similarly describes Peek as “incoherent” and “unable to move around or do anything”

when he arrived at the facility on September 25, 2018. (Id.)

Peek and the government have both provided medical records from Essex County

Correctional Facility showing that Peek was prescribed Risperidone, Lithium, and Remeron while

he was incarcerated there. (Government’s Exhibit E, Medical Records at 132; see also Peek’s

Exhibit B.)

c. The Bureau of Prison Medical Records

The government also provides Peek’s BOP medical records for the relevant time period.

The medical records indicate that Peek was prescribed Risperidone and Lithium on September 12,

2018, while he was housed at FTC Oklahoma City and presumably in transit to FCI Cumberland

in Maryland. (See Medical Records at 136; see also id. at 128 (listing September 11, 2018 as Peek’s

departure date from ECCF and September 21, 2018 as the date Peek was medically cleared for

transfer from FTC Oklahoma City).) Peek’s medical records also include BOP consent forms to

take Risperidone, Lithium, and Remeron, which Peek signed and dated on September 24, 2018, as

well as a consent form to take Fluoxetine (Prozac),7 which Peek signed and dated on September

25, 2018.8 (Medical Records at 137-140.)

7 Fluoxetine (brand name Prozac) is used to treat depression and is a type of selective serotonin

reuptake inhibitor (“SSRI”). See NAMI.org, Fluoxetine (Prozac), available at

https://www.nami.org/About-Mental-Illness/Treatments/Mental-Health-Medications/Types-of-

Medication/Fluoxetine-(Prozac), last visited Nov. 20, 2023.

8 The government notes that the clinical director of FCI Cumberland signed each form, certifying

his or her “opinion that this patient understands the proposed treatment and is competent to give

consent.” (Id. (emphasis in original).) (The forms had a separate line where the clinician could

Upon arrival at FCI Cumberland, Peek had a prescription for Lithium, but on or about

September 25, 2018, the Lithium was discontinued. (Medical Records at 49.) That day, Dr.

Mohamed Moubarek saw Peek for a chronic care evaluation and wrote that “Patient was DX with

Depression with psychotic episodes, doing well on current meds.” (See id. at 27, 29 (stating “Will

keep on the same does of meds”).) On September 26, 2018, Dr. Moubarek increased Peek’s

Risperidone from 2mg once a day to 2mg twice a day and the “Indication” listed is

“Schizoaffective disorder and Delusional Disorder.” (Medical Records at 25.) On September 25,

2018, Peek was also prescribed 20mg of Fluoxetine once daily. (See id. at 48.)

Approximately five months later, on February 21, 2019, a “medication reconciliation

encounter” was performed by Kristi Crites, CRNP, who noted the following: “Noncompliance

with medication—MH. Will discontinue and schedule for follow up.” (Medical Records at 19.)

On February 25, 2019, Crites renewed Peek’s Fluoxetine and wrote the following note: “Inmate

wishes to continue the Prozac. It is hand carry. He does not want to take the Risperdal.” (Id. at 17.)

On March 11, 2019, Peek visited Crites to discuss discontinuing the Risperdal, and she wrote the

following note:

Inmate here to discuss the discontinuation of his Risperdal due to

noncompliance. Inmate states he is doing well on just the Prozac.

He is happy that is now hand carry because he wasn’t compliant

when it was pill line. Denies SI/HI/Hearing Voices. He is aware that

if he starts to have a MH decline that he needs to go to speak with

psychology to have this addressed.

(Id. at 15.)

have indicated an opinion that Peek was not competent to give consent, but the clinician did not

do so.)

At a subsequent visit on August 8, 2019, Crites discontinued Peek’s Fluoxetine and wrote

that Peek stated that “he has been feeling well and he hasn’t been taking it.” (Medical Records at

5; see id. at 7 (listing “Patient Refused” as the reason for discontinuing Fluoxetine).)

On June 26, 2020, Dr. Moubarek saw Peek at a chronic care visit and wrote the following

note:

Patient was given the DX of Persistent Depressive Disorder—In

Full Remission by Cumberland psychologist, for which he is not

taking MH medication and hasn’t been for awhile. Denies SI, HI,

Hearing Voices. States that he doesn’t feel like he needs meds[.]

[H]e doesn’t want to be on any at this time and he is doing well

without meds[.] [H]e is aware that is he feels he might need[] to

restart medication, he needs to notify his h/s via copout to have it

addressed.

(Exhibit F, Medical Records 2 at 2; see also id. at 6.)

d. Peek Seeks to Amend his § 2255 Petition Based on United States v. Taylor, 142 S.

Ct. 2015 (2022)

On June 28, 2022, Peek filed a letter request on the criminal docket to amend his § 2255

motion based on the Supreme Court’s decision in United States v. Taylor, 142 S. Ct. 2015 (2022)

(holding that attempted Hobbs Act robbery does not qualify as a crime of violence under the

elements clause of statutory definition of crime of violence). (See Crim. No. 15-609, ECF No.

130.) Peek also sought appointment of counsel. (Id.)

On July 6, 2022, the Court appointed habeas counsel to represent Peek and directed the

parties to provide briefing on Peek’s Taylor claim. (Id. at ECF No. 132, 133.) The parties

concluded that briefing on November 22, 2022. (See Civ. No. 20-9747, ECF Nos. 20, 22, 23, 29;

see also Crim. No. 15-609, ECF No. 141.) Habeas counsel also addressed Peek’s arguments for

equitable tolling in her sur reply.9 (See Crim. No. 15-609, ECF No. 141.) On December 1, 2022,

9 The Court considers these arguments in addressing the government’s motion to dismiss.

the Court appointed habeas counsel to represent Peek in his § 2255 proceedings. (Civ. No. 20-

9747, ECF No. 30.)

On May 8, 2023, Peek filed a pro se motion to compel judgment on his ineffective

assistance claims. (ECF No. 32.) The Court denied that motion, finding that the Sixth Amendment

does not require the Court to permit hybrid representation and that hybrid representation was

equally disfavored in civil proceedings. (ECF No. 33.) Noting that habeas counsel had addressed

only Peek’s equitable tolling arguments, the Court provided her with 45 days to submit a

supplemental brief addressing the merits of Peek’s ineffective assistance claims, if warranted, and

permitted the government to file a reply brief within 30 days.

Habeas counsel wrote to the Court on June 21, 2023 that “the defense has determined not

to supplement the briefing done to date by Mr. Peek on his § 2255 motion.” Habeas counsel noted,

however, that the government had not addressed the merits of Peek’s ineffective assistance claims

and reserved the right to file a reply to the government’s answer if the Court denied the

government’s motion to dismiss. (ECF No. 36 at 2.)

Peek then filed letter motions seeking an extension of time to file a supplemental brief and

place appointed counsel on standby or permit him to proceed pro se. (ECF No. 39, 40). In response

to these motions, the government filed a motion for an Order finding a limited waiver of attorney-

client privilege (if the Court denied its motion to dismiss), and Peek filed an opposition brief. (ECF

Nos. 41, 44.) In light of Peek’s request to place her on standby, habeas counsel also wrote to the

Court regarding whether she should continue to represent Peek in his § 2255 claims against his

second attorney. (ECF No. 43.) Habeas counsel noted, however, that she does not wish to withdraw

and believes that Peek’s Taylor claim has merit. (Id.)

II. DISCUSSION

The Court first addresses the government’s motion to dismiss Peek’s ineffective assistance

claims as untimely and Peek’s requests for equitable tolling or a hearing on the issue. The Court

also resolves the parties’ related motions.

a. The Motion to Dismiss

A court may dismiss a section 2255 motion where the record shows conclusively that the

movant is not entitled to relief. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994); see also

Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts (“If it

plainly appears from the motion, any attached exhibits, and the record of prior proceedings that

the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to

notify the moving party.”). In considering a Section 2255 petition, the “district court must accept

the truth of the movant’s factual allegations unless they are clearly frivolous on the basis of the

existing record.” Johnson v. United States, 294 F. App’x 709, 710 (3d Cir. 2008) (internal

quotation omitted). The district court may, however, dispose of “vague and conclusory allegations”

contained in a Section 2255 petition without further investigation. Id. at 710 (quoting United States

v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)). In addition, “a petition for habeas corpus prepared

by a prisoner without the aid of counsel must be read with a measure of tolerance. However, he

should not be relieved of the statutory requirement to state the facts upon which his claim to relief

is predicated.” Wade v. Yeager, 377 F.2d 841, 846 (3d Cir.1967).

Under AEDPA, § 2255 motions filed by federal prisoners are generally subject to a one-

year limitations period. See 28 U.S.C. § 2255(f). There are four possible start dates for the

limitations period, and Section 2255(f) provides, in relevant part:

The limitation period shall run 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;

(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.

Id.

In the usual case, if a criminal defendant “does not pursue a timely direct appeal to the

court of appeals,” his or her conviction and sentence become “final” within the meaning of §

2255(f)(1), and the one-year limitation period begins to run “on the date on which the time for

filing such an appeal expired.” Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). Here,

the Court sentenced Peek on August 10, 2018, and entered an Amended Judgment on August 17,

2018. (Crim. No. 15-609, ECF No. 83, 84.) Peek did not appeal, and his judgment of conviction

became final 14 days later on August 31, 2018. See Crim. R. App. P. 4(b)(1)(A)(i). As such, the

one-year period expired on August 31, 2019. Peek submitted his § 2255 motion to prison officials

for filing on or about July 23, 2020, nearly eleven months after the one-year period expired.

Although Peek’s § 2255 motion is untimely under § 2255(f)(1), the one-year statute of

limitations for § 2255 cases is subject to equitable tolling.10 See Miller v. New Jersey State Dept.

of Corrections, 145 F.3d 616, 619 (3d Cir. 1998) (holding “that the one year period of limitation

for § 2255 cases is also subject to equitable tolling”); see also Ross v. Varano, 712 F.3d 784, 798

(3d Cir. 2013) (citing Holland v. Florida, 560 U.S. 631, 645 (2010)). Equitable tolling applies

10 The government also argues that Peek’s ineffective assistance claims are untimely under §

2255(f)(4). Because the Court provisionally grants Peek’s request for equitable tolling, it need

not address this issue.

when a petitioner has been prevented in “some extraordinary way” from timely filing and has

“exercised reasonable diligence” in bringing the claims. Nara v. Frank, 264 F.3d 310, 319 (3d Cir.

2001), overruled in part on other grounds by Carey v. Saffold, 536 U.S. 214 (2002). The petitioner

bears the burden of establishing both extraordinary circumstances and reasonable diligence. See

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). There are no bright lines for determining

eligibility. Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). Although this equitable doctrine

is used sparingly, the assessment is flexible and the particular circumstances of the petitioner must

be taken into account. Id.

The government argues that Peek is not entitled to equitable tolling because his BOP

medical records conclusively rebut his claim that he could not timely file his § 2255 petition due

to the severity of his mental illness and/or changes to his mental health medications. Habeas

counsel argues that Peek’s persistent and significant mental health issues coupled with the COVID-

19 pandemic amounted to extraordinary circumstances and that Peek exercised reasonable

diligence in the face of those challenges. Habeas counsel further argues that Peek is entitled to

equitable tolling for the 11-month delay in filing his § 2255 petition.11

Under Third Circuit law, “mental incompetence is not a per se reason to toll a statute of

limitations,” and “must somehow have affected the petitioner’s ability to file a timely habeas

petition.” Nara, 264 F.3d at 320. In Champney v. Sec’y DOC, 469 F. App’x 113, 117–18 (3d Cir.

2012) (nonprecedential), the Third Circuit provided a “non-exhaustive list of factors to consider”

in determining whether mental illness constitutes an extraordinary circumstance for equitable

tolling purposes. The Champney factors include:

11 Alternatively, Peek and habeas counsel argue that Peek should get a hearing on the issue of

equitable tolling.

(1) whether the petitioner was adjudicated incompetent and, if so,

when did the adjudication occur in relation to the habeas statutory

period; (2) whether the petitioner was institutionalized for his

mental impairment; (3) whether the petitioner handled or assisted in

other legal matters which required action during the federal

limitations period; and (4) whether the petitioner supported his

allegations of impairment with extrinsic evidence such as

evaluations and/or medications.

Id. at 118 (cleaned up).

In Wallace v. Mahanoy, 2 F.4th 133, 136 (3d Cir. 2021), the Third Circuit considered

whether a mentally ill petitioner faced extraordinary circumstances sufficient to excuse a “decade-

plus delay” in filing his habeas petition.12 The circuit court reaffirmed that to warrant equitable

tolling, a petitioner’s “alleged mental incompetence must somehow have affected the petitioner’s

ability to file a timely habeas petition,” though he need not show that it made his filing impossible.

Id. at 144, 145 n.18 (internal quotations omitted). “[T]he relevant inquiry for purposes of assessing

extraordinary circumstances is how severe an obstacle the circumstance

creates with respect to meeting AEDPA’s one-year deadline.” Id. at 144 (internal quotations and

alteration omitted). The Third Circuit also declined to adopt the Champney factors and described

them as a “starting point” to establish that the petitioner genuinely suffers from mental illness. Id.

at 144-45. It clarified that courts must consider “the totality of the circumstances in determining

whether the record supports [the petitioner’s] claim that he had no periods of sufficiently good

health . . . during which time he could have pursued a federal habeas petition.” Id. at 145.

The Third Circuit then assessed Wallace’s medical records and other record evidence and

determined that Wallace genuinely suffered from mental illness, but he also had “periods of

relative stability” where he was “capable of pursuing legal remedies[.]” Id. at 145. The Court noted

12 Wallace’s petition was due on January 7, 2002, but the petitioner “contend[ed] that his mental

illness so hampered his ability to think clearly that he could not reasonably have been expected

to file for federal habeas relief at any time prior to September 2015.” Id. at 136.

in particular that “Wallace was able in 2013 to pursue state post-conviction relief—despite his

many medications and his claimed decline in mental health.”13 Id. at 148.

Here, there is no real debate that Peek also suffers from some degree of mental illness, and

the record as a whole suggests that he, like the petitioner in Wallace, has likely experienced periods

of poor mental health followed by periods of relative stability. Peek filed his petition

approximately 11 months late, which is a much shorter delay than the decade-long lapse considered

in Wallace. At issue is whether the record sufficiently supports Peek’s claim that he experienced

no periods of sufficiently good mental health from September 2018 through March 2020 during

which he could have filed his § 2255 petition.14

The Court is mindful that Peek was proceeding pro se at the time the government filed its

motion to dismiss, and the Court liberally construes his submissions. Peek contends that his

medications were suddenly changed by the BOP in September 2018, and that prison officials did

not consult him about that change, which resulted in serious side effects that essentially

incapacitated him. Peek’s medical records appear to confirm that the medical providers at the BOP

discontinued Peek’s mood stabilizer Lithium, increased his dose of the antipsychotic medication

Risperidone from once daily to twice daily, and began prescribing him Fluoxetine. Peek’s

allegations that he stopped taking Risperidone in March 2019 and stopped taking Fluoxetine in

August 2019 are also largely consistent with his medical records.

13 The Court also rejected Wallace’s claim that a hearing was required, finding that “[t]here is

substantial documentary evidence in the record” that supported the court’s “conclusion that

Wallace’s mental illness did not pose a sufficiently severe obstacle to his pursuit of legal

remedies for a period of several years.” Id.

14 As discussed below, Peek also contends that he was also unable to file his § 2255 petition

during the first four months of the Covid-19 pandemic.

Peek also claims, however, that he discontinued these medication due to severe side effects

and remained incapacitated by those side effects until March 2020. He also contends that he

discontinued his mental health medications because he had poor insight into his condition and

falsely believed that his mental health had significantly improved. He alleges that his mental health

declined and he had psychotic episodes after discontinuing his mental health medications. Finally,

he contends that he began his § 2255 petition in July 2019 but could not complete it until a year

later due to his poor mental health.

The Government focuses on the fact that Peek discontinued the antipsychotic medication

Risperidone in March 2019, when he still had five months left to file a timely § 2255 petition. Peek

also discontinued Fluoxetine in August 2019, close to when his limitations period expired. The

Court, however, is not a psychologist or a pharmacist and is unable to determine whether Peek

experienced debilitating side effects from his mental health medications or whether those side

effects ceased at the time he discontinued the medications, shortly thereafter, or many months later,

as Peek claims.

The government also points to several statements Peek made to his medical providers

during the relevant timeframe. Shortly after Peek discontinued the Risperidone, he told his

provider he was doing well without it. Similarly, he stated in August 2019 that he did not need

Prozac. In June 2020, a month before he filed his habeas petition, Peek told his medical provider

that he was doing well without either medication. Peek also appears to deny having a mental health

relapse. In addition, Peek’s medical records do not document the side effects he claims he

experienced or a decline in his mental health after discontinuing his medications. As habeas

counsel argues, however, Peek’s isolated statements to his medical providers that he was doing

fine without the medications should be viewed with caution in light of Peek’s admission that he

lacked insight about his mental illness and his need for mental health medications. (See Crim. No.

15-609, ECF No. 141, Sur-Reply Brief at 6.)

The Court also notes that the government does not provide any other evidence that Peek

was capable of filing his § 2255 petition after he discontinued Risperidone in March 2019 and

Fluoxetine in August 2019. For instance, there is no evidence before the Court, as there was in

Wallace, that Peek assisted with other legal matters after discontinuing his mental health

medications. Although Peek apparently earned his GED prior to sentencing at Essex County

Correctional Facility, Peek claims that his mental health rapidly declined after his transfer to the

BOP due to changes to his mental health medications and his later decision to discontinue those

medications. The government has not pointed to any evidence that Peek took additional

educational courses, held a prison job, or engaged in other activities after his transfer to the BOP

that would indicate that he was capable of filing his § 2255 petition prior to July 23, 2020.

Ultimately, the Court finds that Peek’s medical records from the BOP do not conclusively

rebut Peek’s contentions that he was significantly impaired by his mental illness and changes to

his mental health medications from September 2018 through March 2020.

Peek did not file his § 2255 petition until July 23, 2020, and he contends that he was

hampered by the 24-hour lockdowns caused by the COVID-19 pandemic. The government focuses

on Peek’s mental health and does not directly dispute that the COVID-19 pandemic resulted in

protracted lockdowns or argue that Peek could have filed his habeas petition during the first four

months of the COVID-19 pandemic. “Courts have concluded that the COVID-19 pandemic ‘could

– in certain circumstances – conceivably warrant equitable tolling.’” United States v. Henry, No.

20-cv-1821, 2020 WL 7332657, at *3 (W.D. Pa. Dec. 14, 2020) (quoting United States v. Haro,

No. 8:18CR66, 2020 WL 5653520, at *4 (D. Neb. Sept. 23, 2020)). This argument is more

compelling during the very early months of the COVID-19 pandemic. See Dunn v. Baca, No. 3:19-

cv-00702, 2020 WL 2525772, at *1 (D. Nev. May 18, 2020) (finding that under the extraordinary

circumstances of the COVID-19 pandemic, equitable tolling for a fixed time until August 10, 2020,

is warranted); Monroe v. United States, No. 4:17-cr-11, 2020 WL 6547646, at *3 (E.D.V.A. Nov.

6, 2020) (“The Court recognizes that Petitioner may have experienced issues in attempting to

timely file the present motion while facing the impact of a global pandemic. Accordingly, the

Court will toll the filing deadline ... as the circumstances surrounding the pandemic were both

extraordinary and beyond Petitioner’s control.”); see also Meghan L. Downey, Extraordinary

Circumstances and Extraordinary Writs: Equitable Tolling During the COVID-19 Pandemic and

Beyond, 27 Berkeley J. Crim. L. 31, 68 (2022) (explaining that the lockdowns prisoners

“experienced from April to June of 2020 [were] extensive, facility-wide, and brought about by a

global pandemic that wrought havoc on the U.S. legal system”).

Although COVID-19 lockdowns and restrictions alone may not warrant tolling, the Court

must assess the record as a whole under the totality of the circumstances. See, e.g., Ross v. Varano,

712 F.3d at 803 (“consider[ing] the record as a whole,” including the conduct of petitioner’s

attorney, the petitioner’s “limited intellectual ability and education,” his “history of poor mental

health,” and the fact that he was “an incarcerated prisoner with limited resources at his disposal

who was moved among facilities within the prison system”). Here, Peek’s circumstances include

his mental illness, his claims about the debilitating side effects of his mental health medications,

his alleged mental health decline after discontinuing those medications, and the alleged challenges

of filing his habeas petition during the first quarter of the COVID-19 pandemic. These facts, which

the Court must credit at the motion to dismiss stage, are sufficient to establish extraordinary

circumstances.

To grant equitable tolling, the Court must also be satisfied that Peek pursued his rights

diligently. See Pace v. DiGuglielmo, 544 U.S. 408, 418–19 (2005). “[T]he reasonable diligence

showing that a petitioner must make to obtain equitable relief from the AEDPA statute of

limitations is less than a showing of extraordinary diligence” or “Herculean effort” and must

account for the particular characteristics of the petitioner. See Ross, 712 F.3d at 802 (explaining

that petitioner was an incarcerated lay person with limited cognitive abilities). In finding that Peek

exercised reasonable diligence, the Court considers and credits the same facts outlined above.15

In sum, the Court finds that Peek has provided sufficient facts and evidence that

extraordinary circumstances prevented him from timely filing his § 2255 petition and that he acted

with reasonable diligence in filing his petition on or about July 23, 2020. In light of the age of this

matter and the extensive briefing that has already occurred, the Court also determines that a hearing

is unnecessary and unlikely to clarify the relevant issues. For these reasons, the Court denies the

government’s motion to dismiss the petition as untimely and provisionally grants Peek’s request

for equitable tolling.

b. The Related Motions

Having denied the government’s motion to dismiss, the Court next considers its request for

a limited waiver of attorney-client privilege and an extension of time to file the answer. (ECF No.

41.) The Third Circuit has generally held that parties implicitly waive attorney-client privilege

15 The Court also notes that this case is distinguishable from Wallace. There, the Third Circuit

focused on a two-year period from 2013 through 2015 when the petitioner was able to pursue

relief in state court despite his mental illness and held that petitioner’s failure to file a protective

habeas petition while his state court proceedings were pending “undermine[d] his diligence

claim.” In Schlueter v. Varner, 384 F.3d 69, 76 (3d Cir. 2004), the Third Circuit also denied a

petitioner equitable tolling for lack of diligence, but Schlueter involved tolling for attorney error

that the petitioner could have discovered through reasonable diligence. In making this finding,

the Court specifically acknowledged that petitioner was incarcerated but had his parents’

assistance in pursuing habeas relief. See id. at 75.

when they place the legal representation directly in issue. See Emmanouil v. Roggio, 499 F. App’x.

195, 201 (3d Cir. 2012); U.S. Fire Ins. Co. v. Asbestospray, Inc., 182 F.3d 201, 212 (3d Cir. 1999);

Livingstone v. N. Belle Vernon Borough, 91 F.3d 515, 537 (3d Cir. 1996); Rhone–Poulenc Rorer

Inc. v. Home Indent. Co., 32 F.3d 851, 863 (3d Cir. 1994). Other circuits have explicitly held that

when a petitioner “claims that he received ineffective assistance of counsel, he puts

communications between himself and his attorney directly in issue, and thus by implication waives

the attorney-client privilege with respect to those communications.” United States v. Pinson, 584

F.3d 972, 977–78 (10th Cir. 2009); see also, e.g., In re Lott, 424 F.3d 446, 453 (6th Cir. 2005);

Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003); Johnson v. Alabama, 256 F.3d 1156,

1178 (11th Cir. 2001); Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974).

Following this authority, at least one court in this district has held that “implicit waiver of

attorney-client privilege is limited, however, to attorney-client communications that are necessary

for the resolution of the claims at hand.” Ragbir v. United States, 2018 WL 1871460, at *3 (Apr.

19, 2018, McNulty, J.) (citing Pinson, 584 F.3d at 978 (“[W]hen a habeas petitioner claims

ineffective assistance of counsel, he impliedly waives attorney-client privilege with respect to

communications with his attorney necessary to prove or disprove his claim.”); Bittaker, 331 F.3d

at 720 (“[T]he court must impose a waiver no broader than needed to ensure the fairness of the

proceedings before it.”). Courts have also found that the implicit waiver of privilege generally

applies equally to attorney-client privilege and work-product privilege. See Bittaker, 331 F.3d at

722 n.6 (citing Upjohn Co. v. United States, 449 U.S. 383, 400 (1981)); Muhammad v. United

States, No. 15–6845, 2016 WL 1243617, at *l (D.N.J. Mar. 28, 2016); Ragbir, 2018 WL 1871460,

at *3.

The government’s proposed order tracks the correct standard and seeks a limited waiver of

attorney-client privilege with respect to communications that are reasonably necessary to prove

Peek’s ineffective assistance claims. (See ECF No. 41-2 at 2.) Therefore, the Court grants the

government’s request for a limited waiver of attorney-client privilege and directs the government

to file a full answer within 60 days.

Having denied the government’s motion to dismiss the ineffective assistance claims as

untimely, the Court will also deny without prejudice Peek’s motion to file a supplemental brief on

the merits of the ineffective assistance claims. (ECF No. 39.) Instead, the Court permits Peek’s

habeas counsel to file a reply to the government’s answer.16 The Court also directs the parties to

update their briefing on Peek’s claim under United States v. Taylor, 142 S. Ct. 2015 (2022), and

provide any new precedential or persuasive authority.

The Court also denies without prejudice Peek’s request to have appointed counsel act as

standby counsel, or to proceed pro se. (ECF No. 40.) There is no right to counsel for collateral

proceedings. See Bevard v. Bergami, No. 21-2410, 2021 WL 2118340, at *1 (D.N.J. May 25,

2021) (Bumb, J.) (citing Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991)). Here, the Court

appointed counsel for Peek pursuant to 18 U.S.C. § 3006A because his Taylor claim has potential

merit and involves complex and novel issues of law. Thus far, Peek’s appointed counsel has

performed ably on Peek’s behalf, and it would not benefit the Court (or Peek) to permit Peek to

proceed pro se or with stand by counsel with respect to his Taylor claim or his ineffective

16 Peek’s habeas counsel expressed a willingness to file a reply if this Court directed the

government to file an answer on the merits of Peek’s ineffective assistance claims.

assistance claims. The Court also denies as moot Peek’s motion to compel judgment on his motion

to place his counsel on standby.17 (ECF No. 46.)

III. CONCLUSION

For the reasons explained in this opinion, the Court denies the government’s motion to

dismiss Peek’s ineffective assistance of counsel claims against second counsel and provisionally

grants Peek’s requests for equitable tolling. The Court grants the government’s motion for a limited

waiver of attorney-client privilege and directs the government to submit its answer within 60 days.

Peek’s habeas counsel may submit a reply brief responding to the government’s answer. In their

submissions, the parties shall also update their briefing on the Taylor claim. The Court also denies

without prejudice Peek’s request to have appointed counsel act as standby counsel, or to proceed

pro se and denies as moot his motion to compel judgment on his motion to proceed standby or pro

se. An appropriate Order follows.18

s/Katharine S. Hayden_______

KATHARINE S. HAYDEN

United States District Judge

DATED: November 22, 2023

17 On November 4, 2023, Peek submitted a petition for a writ of mandamus asking the Third

Circuit to direct this Court to rule on his motion to place habeas counsel on standby or proceed

pro se. The Clerk of the Court docketed a copy of Peek’s mandamus petition in this action on

November 16, 2023. (ECF No. 48.)

18 On June 27, 2023, Peek signed up to receive electronic notifications. (ECF No. 42.) On

October 17, 2023, Peek wrote to the Clerk of the Court requesting to receive service by mail.

(ECF No. 47.) The Court will direct the Clerk of the Court to send copies of this Opinion and the

accompanying Order to Peek at FCI Otisville. Habeas counsel shall continue to receive

electronic notifications consistent with this Court’s denial of Peek’s motion to relieve her or

place her on a different status.