Cormier v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

JOEL D. CORMIER, )

)

Petitioner, )

)

v. ) No. 2:16-CV-00292-JRG-CLC

)

UNITED STATES OF AMERICA, )

)

Respondent. )

MEMORANDUM OPINION

This matter is before the Court on Petitioner’s Supplemental Motion to Vacate, Set Aside

or Correct Her Sentence [Doc. 9], the United States’ Response to Petitioner’s Supplemental

Motion to Vacate, Set Aside or Correct Her Sentence [Doc. 12], and Petitioner’s Reply [Doc.

14]. For the reasons herein, the Court will deny Petitioner’s motion.

I. BACKGROUND

A federal inmate, petitioner Joel D. Cormier pleaded guilty to attempting to persuade a

minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). [Plea Agreement, Doc.

22, at 1, 2:15-CR-00003].1 On October 19, 2015, the Court sentenced her to 216 months’

imprisonment and a lifetime term of supervised release, and it entered judgment against her on

October 22, 2015. [J., Doc. 45, at 1–3, 2:15-CR-00003]. About eleven months later, she filed a

motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255, and roughly four

months after filing this motion, she moved for leave to file a “supplemental motion.” [Pet’r’s

Suppl. Mot. at 1]. In her own terms, she described her supplemental motion as “superceding”

1 Ms. Cormier now identifies as transgender and has asked the Court to refer to her as a female throughout

these proceedings. [Pet’r’s Mot. for Video Conference, Doc. 17, at 1].

her “original § 2255 motion,” [id. at 7], and the Court, after granting her leave to file it, ordered

the United States to file a responsive pleading, [Order, Doc. 10, at 2].

In her supplemental motion, she alleges ineffective assistance of counsel, claiming that

her attorney, Ms. Rosana Brown, was ineffective—in violation of her constitutional rights under

the Sixth Amendment of the United States Constitution—because she did not file an appeal of

her sentence. [Pet’r’s Suppl. Mot. at 3–9]. She alleges that she “specifically” told Ms. Brown

to “file notice of appeal immediately following [her] sentencing on October 19, 2015,” and that

in response, Ms. Brown informed her that an appeal would be futile. [Id. at 3–4]. Ms. Cormier

pleads that she then instructed Ms. Brown to appeal her sentence “regardless of the chances of

its success or failure,” but Ms. Brown did not do so. [Id. at 5].

After reviewing Ms. Cormier’s supplemental allegations, the Court determined that she

had pleaded sufficient facts to warrant an evidentiary hearing,2 and it therefore ordered the

parties to appear for an evidentiary hearing on March 21, 2019. [Order, Doc. 16, at 1–2]. Under

the Criminal Justice Act, 18 U.S.C. § 3006A et seq., the Court appointed counsel to represent

Ms. Cormier, who was present in person at the hearing, as was Ms. Brown. [Id.]. Ms. Cormier

was the first witness to testify, while Ms. Brown, who was under the rule of sequestration,

remained outside the courtroom. [Hr’g Tr. at 4:18–25; 5:1–2 (on file with the Court)].

At the outset, Ms. Cormier’s testimony was largely a reiteration of her allegations. She

testified that she had asked Ms. Brown to appeal her sentence immediately after her sentencing

hearing, but Ms. Brown responded by telling her that “an appeal wasn’t practicable.” [Id. at

6:22–25; 7:1–7]. According to Ms. Cormier, she instructed her to file an appeal anyway, and as

2 On a § 2255 motion, a petitioner’s burden of establishing her right to an evidentiary hearing is “relatively

light,” which means that “when presented with factual allegations, ‘a district court may only forego a hearing where

the petitioner’s allegations cannot be accepted as true because they are contradicted by the record, inherently

incredible, or conclusions rather than statements of fact.’” Martin v. United States, 889 F.3d 827, 832 (6th Cir. 2018)

(internal quotation marks and quotations omitted).

the United States Marshals escorted Ms. Cormier from the courtroom, Ms. Brown assured her

that they would talk again soon. [Id. at 7:5–7]. Ms. Cormier testified that the day after her

hearing she had spoken to Ms. Brown by telephone and again directed her to file an appeal of

her sentence, but once more, Ms. Brown told her that an appeal would be of no avail. [Id. at

7:18–25; 8:1–19].

Ms. Cormier then went on to testify that due to extenuating circumstances—including

her intermittent transfer to and from various prisons, her need to remain segregated from other

inmates, and her time spent convalescing in a hospital after suffering an attack from another

inmate—she did not prepare her § 2255 motion until about a month before § 2255’s statute of

limitations was set to expire.3 [Id. at 9:23–25; 10:1; 11:1–13; 12:19–22; 13:3–16; 13:20–25;

14:1–6; 14:12–25; 15:1–4; 16:1–25; 17:1–21; 19:2–11]. With an understanding that “it was

imperative to file” a timely § 2255 motion—that is, before the one-year statutory deadline

reached its end—Ms. Cormier hurried to procure a standardized “2255 form,” “completed it

to the best of [her] ability,” and filed it with the Court on September 15, 2016. [Id. at 18:5;

18:18–19; 19:5–8; 19:21–23]. “The ins and outs, the intrinsic details, were as of that point

completely lost to me. I just knew I had to get it filed,” Ms. Cormier testified. [Id. at 18:24–25;

19:1].

After filing her motion, she devoted herself to “practically living in the law library” and

performed “exhaustive research” into the particulars of her case. [Id. at 20:12; 21:5]. From her

research, she “discovered . . . certain details about [her] case which required further expounding

upon, hence the supplement to the 2255,” in which, for the first time, she raised her claim of

ineffective assistance of counsel based on Ms. Brown’s alleged failure to appeal her sentence.

[Id. at 20:18–21]. She did not file this supplemental motion, however, until January 26, 2017.

3 A one-year statute of limitations applies to motions under § 2255. 28 U.S.C. § 2255(f).

According to Ms. Cormier, before filing this motion, she had been unaware that a claim of

ineffective assistance of counsel could arise from an attorney’s non-observance of a client’s

request to appeal a sentence. [Id. at 20:22–25; 21:1–5; 29:11–14].

Although Ms. Cormier was unfamiliar with the legal contours that comprise a claim of

ineffective assistance of counsel until she conducted her research, she acknowledged that she

became aware of the facts underlying her claim on the day after her sentencing, when she spoke

to Ms. Brown by phone:

Q: You were fully aware on October 20, 2015, that Ms. Brown did not intend to

file a notice of appeal, correct?

A: That’s correct.

Q: Whether you knew the significance of that or not, you knew those facts, didn’t

you?

A: Yes, sir.

. . . .

Q: Is it fair to say then that the reason you did not include the claim of failure to

file the notice of appeal in your September 15, 2016 filing is not because you

didn’t know any of the facts, but because you didn’t know the legal significance

of those facts?

A: That is correct.

[Id. at 42:3–9; 45:1–6; see id. at 8:2–19].

After Ms. Cormier’s testimony, Ms. Brown returned to the courtroom and offered her

testimony, which was consistent with Ms. Cormier’s on some fronts. Ms. Brown confirmed

that she and Ms. Cormier did broach the topic of an appeal immediately after her sentencing

hearing, with each of them agreeing to speak further about it by phone once Ms. Cormier

returned to prison. [Id. at 52:14–22]. Ms. Brown testified that, within a day or two, they spoke

by phone and Ms. Cormier inquired about the prospect of an appeal. [Id. at 53:1–8]. According

to Ms. Brown, she stated her opinion that the case, as it related to Ms. Cormier’s sentence,

lacked appealable issues. [Id. at 53:8].

But Ms. Brown refuted the idea that Ms. Cormier asked her to appeal her sentence and

that she refused to do so. Ms. Brown testified that while she did share with Ms. Cormier her

professional opinion that Ms. Cormier’s sentence lacked appealable issues, she also explained

to Ms. Cormier that she was nevertheless “absolutely obligated” to appeal that sentence if

instructed to do so. [Id. at 53:12–17]. According to Ms. Brown, however, Ms. Cormier

ultimately “agreed in [her] assessment of the case,” “decided not to” pursue an appeal, and did

not request an appeal at any point afterwards. [Id. at 53:18–25; 54:1; 55:11–13; 57:1–14; 63:14–

17].

Ms. Brown then testified that she wrote and mailed a letter to Ms. Cormier, with the

intention of confirming their conversation. [Id. at 54:1–2]. She produced a copy of this letter,

which is dated October 27, 2015, and which reads:

This letter is to notify you that the Judgment in your case has been filed. I

have reviewed the Judgment, and it appears to be correct. I must also inform you

of your legal right to appeal the sentence imposed in this case. You have fourteen

days (November 5, 2015) from the entry of the Judgment to file a notice of

appeal. Though you have the legal right to file a notice of appeal, in accordance

with our recent telephone conversation on the matter, I do not believe that you

have any arguable legal issues to raise on appeal. Unless you contact the office, I

will not be filing a notice of appeal.

Because your case is at a conclusion, we are now closing your file. Should

you have any questions or need any information about your case in the future,

please do not hesitate to contact this office.

[Letter, Ex. 1, at 1]. Ms. Cormier testified that she did not recognize this letter and never

received it, [Hr’g Tr. at 9:10–17], but Ms. Brown countered her testimony by stating that the

letter was never returned undelivered to her office, [id. at 64:8–13]. Ms. Brown testified that if

the letter had been returned undelivered to her office, “there would have been a copy of that

resent letter or re-received letter in the file,” but “there was nothing to that effect” in the file.

[Id. at 64:8–21]. In Ms. Brown’s view, “whether or not [Ms. Cormier] received [the letter], [the

letter’s contents are] just support for what occurred on the phone call.” [Id. at 66:23–24].

At the hearing’s conclusion, the parties elected to present closing arguments to the Court

rather than file post-hearing memoranda. The Court has reviewed and carefully considered the

parties’ arguments, in addition to Ms. Cormier’s § 2255 motion. The Court is now prepared to

rule on Ms. Cormier’s motion.

II. STANDARD OF REVIEW

Under § 2255, “[a] prisoner in custody under sentence of a [federal] court . . . claiming

the right to be released . . . may move the court which imposed the sentence to vacate, set aside

or correct the sentence.” 28 U.S.C. § 2255(a). A court must vacate and set aside a sentence if it

concludes that “the judgment was rendered without jurisdiction, or that the sentence imposed

was not authorized by law or otherwise open to collateral attack, or that there has been such a

denial or infringement of the constitutional rights of the prisoner as to render the judgment

vulnerable to collateral attack.” Id. § 2255(b). To warrant relief for a denial or infringement of

a constitutional right, a prisoner has to establish an “error of constitutional magnitude which

had a substantial and injurious effect or influence on the proceedings.” Watson v. United States,

165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993)).

Ms. Cormier claims this precise type of error, maintaining that Ms. Brown’s “failure to comply

with [her] direct request to file a notice of appeal is a per se violation of the Sixth Amendment.”

[Pet’r’s Suppl. Mot. at 3].

III. ANALYSIS

The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his defence.” This right is the right not

merely to representation but to effective representation. McMann v. Richardson, 397 U.S. 759,

771 n. 14 (1970). When a prisoner contests her sentence by raising the specter of ineffective

assistance of counsel, she normally can succeed only by satisfying the familiar Strickland test,

a two-pronged test that requires a showing of deficient performance and prejudice. Strickland

v. Washington, 466 U.S. 668, 688, 694 (1984). To establish deficient performance, a petitioner

must show that her counsel, through the prism of an objective standard of reasonableness, “made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed” by the Sixth

Amendment. Id. at 687. And to establish prejudice, a petitioner must demonstrate that her

counsel’s deficient performance was so serious that it deprived her of her fundamental right to

due process. Id.

But when an attorney fails to follow a client’s directive to file a timely appeal, that

attorney’s performance, as a matter of course, is deficient under an objective standard of

reasonableness, and it creates a presumption that the client has suffered prejudice. See Deitz v.

Money, 391 F.3d 804, 810 (6th Cir. 2004) (“Under the Strickland standard, the failure of [the

defendant’s] attorneys to file a timely appeal on his behalf, despite his purported request that

they do so, would fall below an objective standard of reasonableness.” (citing Roe v. Flores-

Ortega, 528 U.S. 470, 480 (2000))), abrogated on other grounds by Stone v. Moore, 644 F.3d

342 (6th Cir. 2011); see also Garza v. Idaho, 139 S. Ct. 738, 747 (2019) (“[P]rejudice is

presumed ‘when counsel’s constitutionally deficient performance deprives a defendant of an

appeal that he otherwise would have taken.’ [T]his presumption applies even when the defendant

has signed an appeal waiver.” (quoting Flores-Ortega, 528 U.S. at 484)). So, in sum, “so long as

[Ms. Cormier] can show that ‘counsel’s constitutionally deficient performance deprive[d] [her]

of an appeal that [she] otherwise would have taken,’” this Court “[is] to ‘presum[e] prejudice

with no further showing from [Ms. Cormier] of the merits of [her] underlying claim[].’” Garza,

139 S. Ct. at 747 (quoting Flores-Ortega, 528 U.S. at 484)). Ms. Cormier must prove her

allegations of ineffective assistance of counsel by a preponderance of the evidence. Pough v.

United States, 442 F.3d 959, 964 (6th Cir. 2006).

A. Equitable Tolling

Before reaching the merits of Ms. Cormier’s claim of ineffective assistance of counsel,

the Court must first address the timeliness of her supplemental § 2255 motion, in which she

raises her allegations that Ms. Brown did not honor her request to appeal her sentence. See

Pinchon v. Myers, 615 F.3d 631, 640 (6th Cir. 2010) (“Before we can reach the merits of the

ineffective-assistance-of-counsel-at-trial claim, we must first address the timeliness of [the

petitioner’s] amended petition.”); but see Pough, 442 F.3d at 964 (“Even though [the

petitioner’s] motion may have been untimely, this court need not reach the issue because the

motion fails on the merits[.]”). Section 2255’s one-year statute of limitations states:

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.

28 U.S.C. § 2255(f)(1)–(4). In Ms. Cormier’s case, § 2255(f)(1) and § 2255(f)(4) are the only

relevant subsections.

Under § 2255(f)(1), the Court’s judgment against Ms. Cormier became final on the

expiration of the last day on which she could have timely appealed that judgment, Benitez v.

United States, 521 F.3d 625, 629 (6th Cir. 2008); Sanchez-Castellano v. United States, 358 F.3d

424, 428 (6th Cir. 2004), and that day was November 5, 2015, the two-week mark from the

Court’s entry of judgment on October 22, 2015, see Fed. R. App. P. 4(b)(1) (providing that a

defendant must tender her notice of appeal within fourteen days of a district court’s entry of

judgment). Ms. Cormier filed her original § 2255 motion on September 15, 2016—within one

year of the Court’s entry of judgment—so that motion is timely under § 2255(f)(1).

But again, Ms. Cormier’s claim against Ms. Brown—specifically, her claim that Ms.

Brown was ineffective in her assistance by failing to appeal her sentence—appears in her

supplemental motion, and Ms. Cormier has expressed her unmistakable intention for this

supplemental motion to “superced[e],” instead of amend, her “original § 2255 motion.” [Pet’r’s

Suppl. Mot at 7]. The Court therefore construes her supplemental motion as the operative

pleading. See Braden v. United States, 817 F.3d 926, 930 (6th Cir. 2016) (reciting the general

rule that a newly filed pleading supersedes an original pleading unless a petitioner “evinces an

intent” for it to amend rather than supersede the original pleading (citation omitted)); Clark v.

Johnston, 413 F. App’x 804, 812 (6th Cir. 2011) (“[The pro se plaintiff] did not clearly indicate

that he intended his amended pleading to supplement, rather than supersede, his original

pleading. Accordingly, it was appropriate for the district court to rely solely on the amended

pleading in making its rulings.”); Valeriano v. United States, No. 1:15-cv-01278-JDB-egb, 2019

WL 1271030, at *3 n.3 (W.D. Tenn. Mar. 19, 2019) (“Because the inmate has not indicated that

he sought to merely supplement the Petition’s claims, the Amended Petition supersedes the

Petition.” (citing Fed. R. Civ. P. 15(a); Braden, 817 F.3d at 931)).

Ms. Cormier’s supplemental motion is clearly untimely under § 2255(f)(1) because

she filed it on January 26, 2017—over a year after her judgment became final—but even so, it

can be timely under § 2255(f)(4) if January 26, 2016, is the latest date on which, with the

exercise of due diligence, she could have discovered that Ms. Brown refused to file an appeal

on her behalf. 28 U.S.C. § 2255(f)(4). But Ms. Cormier testified that by October 20, 2015,

through a phone call with Ms. Brown, she had become fully aware that Ms. Brown had no

intention of filing an appeal of her sentence:

Q: You were fully aware on October 20, 2015, that Ms. Brown did not intend to

file a notice of appeal, correct?

A: That’s correct.

Q: Whether you knew the significance of that or not, you knew those facts, didn’t

you?

A: Yes, sir.

[Hr’g Tr. at 42:3–9]. Based on this testimony, Ms. Cormier’s claim against Ms. Brown was due

in this Court on October 20, 2016, one year from the date of her phone conversation with Ms.

Brown. See 28 U.S.C. § 2255(f)(4) (providing that the statute of limitations begins to run from

the date when “the facts supporting the claim or claims presented could have been discovered

through the exercise of due diligence”). Her failure to file her supplemental motion containing

this claim until January 26, 2017, renders it untimely under § 2255(f)(4).

Because Ms. Cormier’s supplemental motion is untimely, the only way that the Court

can consider her claim of ineffective assistance of counsel is through the doctrine of equitable

tolling. See Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001) (determining that

§ 2255’s “one-year limitation period is a statute of limitation subject to the doctrine of equitable

tolling”), abrogated on other grounds by Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745

(6th Cir. 2011). The doctrine of equitable tolling allows courts to toll, or stop the running of, a

statute of limitations when a litigant’s failure to meet it “unavoidably arose from circumstances

beyond that litigant’s control.” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)

(quotation omitted). The party requesting equitable tolling bears the burden of establishing her

right to it, and in the case of a habeas petitioner, she is entitled to equitable tolling only if she

shows (1) she has pursued her rights diligently and (2) some extraordinary circumstances

prevented her from timely filing her claim. Id.; see generally Davis v. United States, 417 U.S.

333, 344 (1974) (“[Section] 2255 was intended to afford federal prisoners a remedy identical in

scope to federal habeas corpus.” (citation omitted)).4 “The federal courts sparingly bestow

equitable tolling.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552,

560 (6th Cir. 2000) (citations omitted).

Although Ms. Cormier argues that she encountered extraordinary circumstances en route

to filing her supplemental motion because she was “transported several times,” “assaulted and

hospitalized,” and “segregated on several occasions,” [Hr’g Tr. at 68:8–12], she acknowledged

that she had full access to a law library as early as August 30, 2016—nearly two months before

4 Ms. Cormier does not dispute that she must make this two-pronged showing to establish her right to

equitable tolling. [Hr’g Tr. at 67:16–21].

the statutory deadline. [Id. at 17:10–25; 18:1–2]. From that point on, she was “practically living

in the law library researching anything and everything [she] could find related to [her] case and

the rules of 2255 proceedings.” [Id. at 20:12–14]. And importantly, she conceded that she filed

her supplemental motion—tardy, as it was—only after discovering that an attorney’s failure to

honor a client’s request to appeal a sentence can constitute ineffective assistance of counsel:

Q: At the time of your original filing, were you aware that a trial attorney denying

your request for a notice of appeal was a claim within an ineffective assistance of

counsel claim?

A: I was not.

Q: So it would be your testimony that you discovered that after you were able to

actually research and review what claims were available to you?

A: Correct, through exhaustive research, yes, sir.

[Id. at 20:22–25; 21:1–5].

In response to this testimony, the United States argues that “a misunderstanding of the

law or not having a full knowledge of the case law is not an extraordinary circumstance that

would trigger equitable tolling.” [Id. at 73:18–21]. The United States is correct—ignorance of

the law, or a party’s need for more time to become acquainted with the law, does not authorize

the Court to suspend § 2255’s statute of limitations on equitable grounds. See Ross v. Dole, 945

F.2d 1331, 1335 (6th Cir. 1991) (“It is well-settled that ignorance of the law alone is not

sufficient to warrant equitable tolling.” (citations omitted)); see also Graham-Humphreys, 209

F.3d at 561 (“[E]ven a pro se litigant, whether a plaintiff or a defendant, is required to follow the

law. In particular, a willfully unrepresented plaintiff volitionally assumes the risks and accepts

the hazards which accompany self-representation.” (citing McNeil v. United States, 508 U.S.

106, 113 (1993))).

Simply, “[w]hether equitable tolling is warranted is a fact-intensive inquiry,” Simpson,

624 F.3d at 785–86 (citation omitted), and in this vein, § 2255(f)(4)’s plain language states that

the statute of limitations begins to run from the date when “facts supporting the claim or claims

presented could have been discovered,” (emphasis added). The unequivocal facts from the

evidentiary hearing show that Ms. Cormier was fully aware by October 20, 2015, that Ms.

Brown did not intend to file an appeal on her behalf, establishing that the statutory deadline for

her claim of ineffective assistance was October 20, 2016. Also, despite the fact that she was in

transit from prison to prison and endured some hardship in prison, she still had nearly two

months of access to a law library to form her claims for post-conviction relief, yet she did not

include her present claim against Ms. Brown in her original § 2255 motion. [Hr’g Tr. at 17:10–

25; 18:1–2]. Her mere discovery, upon further legal research, that “a trial attorney denying [a]

request for a notice of appeal was a claim within an ineffective assistance of counsel claim” is

insufficient to allow the Court to countenance inclusion of this claim in a belated supplemental

motion. [Id. at 20:23–25]; see Graham-Humphreys, 209 F.3d at 561; Ross, 945 F.2d at 1335.

While Ms. Cormier could have conceivably moved to amend the claims in her original

motion, rather than supersede them, she did not, either in her filings or during the evidentiary

hearing, pursue this course of action. See generally Watkins v. Deangelo-Kipp, 854 F.3d 846,

849 (6th Cir. 2017) (“An untimely amendment to a habeas petition ‘relates back’ to an original

petition within the . . . one-year limitations period if the original petition and the amended

petition arise out of the same ‘conduct, transaction, or occurrence.’” (quoting Fed. R. Civ. P.

15(c)(1)(B)).5 But even if she had sought to amend her original motion, any contention on her

5 While this case was still in its infancy, Ms. Cormier appeared to argue that she had no need to contend

that her supplemental motion relates back to her original motion because the Court granted her “an enlargement of

time in which to” file her supplemental motion. [Pet’r’s Reply at 3]. But this argument is a mischaracterization of

the record. The Court granted Ms. Cormier leave to file her supplemental motion; it never granted her a concession

part that her present claim against Ms. Brown relates back to any of her original claims would

be dubious if not meritless. See id. at 850 (“[A] petitioner does not satisfy the Rule 15 ‘relation

back’ standard merely by raising some type of ineffective assistance in the original petition, and

then amending the petition to assert another ineffective assistance claim based upon an entirely

distinct type of attorney misfeasance.” (quoting Cox v. Curtin, 698 F. Supp. 2d 918, 931 (W.D.

Mich. 2010))); compare [Pet’r’s Suppl. Mot. at 3–9 (alleging that Ms. Brown was ineffective

because she failed to file an appeal)], with [Pet’r’s Original Mot., Doc. 2, at 6–7 (asserting that

Ms. Brown was ineffective because she did not “strenuously object to admission into evidence at

sentencing of items/documents not included in discovery”)]. In sum, Ms. Cormier’s untimely

claim of ineffective assistance of counsel is not entitled to equitable tolling, and the statute of

limitations therefore bars it.

B. Ineffective Assistance of Counsel

Even if Ms. Cormier’s claim were entitled to equitable tolling, it would still fail on the

merits. Again, to succeed on her claim, she has to establish by a preponderance of the evidence

that Ms. Brown did not follow her directive to appeal her sentence. Garza, 139 S. Ct. at 747;

Pough, 442 F.3d at 964. Ms. Cormier fails to meet her burden.

Ms. Cormier testified that she instructed Ms. Brown to appeal her sentence and that Ms.

Brown did not comply with her request, whereas Ms. Brown testified that Ms. Cormier never

instructed her to appeal her sentence. Their testimonies are a wash, not amounting to a

preponderance of evidence on either side. Apart from her own testimony, Ms. Cormier supplies

under the statute of limitations or viewed her motion as timely under the statute of limitations. Besides, her current

position that she is entitled to equitable tolling belies any argument on her part that her supplemental motion is

timely.

the Court with no other evidence to undergird her claim that she called on Ms. Brown to appeal

her sentence.

Ms. Brown, on the other hand, offered the Court her letter, in which she chronicled her

phone call with Ms. Cormier from October 20, 2015, and wrote that Ms. Cormier elected not to

pursue an appeal of her sentence. In addition, Ms. Brown testified that if the letter had been

undelivered, as Ms. Cormier claims was the case, then “there would have been a copy of that

resent letter or re-received letter in the file,” but “there was nothing to that effect.” [Hr’g Tr. at

64:8–21]. Ms. Brown’s letter and the absence of an undelivered envelope in the file add up to a

preponderance of evidence against Ms. Cormier. They support Ms. Brown’s version of events,

namely her contention that Ms. Cormier did not ask her to file an appeal and that Ms. Cormier

not only received the letter but also voiced no objection to it. Ms. Cormier therefore does not

meet her burden, and her claim of ineffective assistance of counsel fails on its merits.

C. Certificate of Appealability

Lastly, the Court must determine whether to issue a certificate of appealability, which is

necessary for Mr. Cormier to appeal its ruling. 28 U.S.C. § 2253(a), (c)(1)(B). The Court may

issue a certificate of appealability only when a petitioner “has made a substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). To make this showing when a court has

rejected a petitioner’s constitutional claim on the merits, that petitioner must demonstrate that

reasonable jurists would find the court’s assessment of those claims “debatable or wrong.” Slack

v. McDaniel, 529 U.S. 473, 484 (2000). Having reached the merits of Ms. Cormier’s claim for

ineffective assistance of counsel under the Sixth Amendment, the Court does not conclude that

reasonable jurists would find its rejection of that claim debatable or wrong. The Court will

therefore decline to issue a certificate of appealability to Ms. Cormier.

IV. CONCLUSION

Ms. Cormier’s claim of ineffective assistance of counsel against Ms. Brown is untimely

under § 2255’s statute of limitations, and even if her claim were not time-barred, she fails to

prove her allegations by a preponderance of the evidence. The Court must therefore conclude

that her conviction and sentencing were not in violation of the Sixth Amendment. Her Motion

to Vacate, Set Aside, or Correct Her Sentence [Doc. 9] is DENIED, and this action is

DISMISSED with prejudice. The Court will enter an order consistent with this opinion.

ENTER:

s/J. RONNIE GREER

UNITED STATES DISTRICT JUDGE