rejecting the petitioner’s ineffective assistance of counsel claim as untimely under § 2255(f)(4) because he offered no evidence showing when he discovered that his attorney was not going to file an appeal
How later courts described this case
- rejecting the petitioner’s ineffective assistance of counsel claim as untimely under § 2255(f)(4) because he offered no evidence showing when he discovered that his attorney was not going to file an appeal
- finding a 75-day delay in discovering the lack of appeal unreasonable
- “Ignorance of the law, even by an incarcerated pro se petitioner, is not grounds to toll the statute.”
- “Ignorance of the law, even by an incarcerated pro se prisoner, is not grounds to toll the statute”
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
concurring.
I concur in the Per Curiam opinion. I do not believe we should apply the doctrine of equitable tolling here to extend Moore’s time for filing a § 2255 proceeding. The court explained to Moore that he had waived his right to appeal and Moore said that he was satisfied with his lawyer. There is nothing in the record to indicate that Moore asked his lawyer to appeal within the 10-day period, except Moore’s general claim (without any detail) that he told his lawyer to appeal. But appeal what? Ineffective assistance of counsel? Innocence? Then Moore waits for 15 months to call the failure to appeal to the court’s attention and then files a complaint that does not explain why he now claims he is not guilty or what would be the basis for vacating his guilty plea and setting aside his plea agreement. I see no basis in equity for extending the time for filing a claim based on no understandable reason.