Petition for Writ of Certiorari — Akiaz Marqiez King, Petitioner v. United States
Supreme Court briefMay 17, 2023
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No. - - - -- - -- -
IN THE SUPREME COURT
OF THE UNITED STATES
AKIAZ MARQIEZ KING,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
On Petition For Writ Of Certiorari To
The United States Court Of Appeals
For The Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
Stephen R. Sady
Chief Deputy Federal Public Defender
Counsel ofRecord
C. Renee Manes
Assistant Federal Public Defender
101 SW Main Street, Suite 1700
Portland, Oregon 97204
(503) 326-2123
Attorneys for Petitioner
QUESTION PRESENTED
Mr. King entered a guilty plea to a violation of 18 U.S.C. § 242l(a) based on his
attorney's advice that the conviction would not require him to register as a sex offender
under Oregon state law. Contrary to his attorney's advice, Mr. King's federal probation
officer later advised him that he had to register under state law. Defense counsel sought
declaratory relief in state court contesting the registration requirement, then appealed the
denial ofrelief to the state court of appeals and the state supreme court, all without success.
Within one year of the appellate affirmance, Mr. King filed a prose motion under 28 U.S.C.
§ 2255 asserting that he received ineffective assistance of counsel in violation of the Sixth
Amendment due his attorney's incorrect advice regarding registration. The federal district
court dismissed the motion as untimely, and the Ninth Circuit affirmed, ruling that the oneyear statute of limitations under 28 U.S.C. § 2255(f) ran from the date when the state trial
court denied relief, not when the state appellate proceedings concluded. The questions
presented are:
Should the Court grant a writ of certiorari, vacate the judgment below, and
remand this case for the Ninth Circuit to consider this Court's intervening
decision in Reed v. Goertz, 143 S. Ct. 955 (2023), which held that the federal
statute of limitations for filing a federal claim under 42 U.S.C. § 1983 does
not run until potentially dispositive state litigation is final?
In the alternative, under the reasoning of Reed v. Goertz, 143 S. Ct. 955
(2023), does the one-year statute oflimitations under 28 U.S.C. § 2255(f)(4)
commence only when state court proceedings resolving a question of state
law necessary to the defendant's federal constitutional claim have been
finally resolved on appeal?
PARTIES TO THE PROCEEDINGS
The parties to the case are Mr. King, a defendant in a federal criminal case and the
movant under 28 U.S.C. § 2255, and the United States government.
RELATED PROCEEDINGS
There are no proceedings that should be deemed related under Supreme Court Rule
14( 1)(b)(iii).
TABLE OF CONTENTS
Page
Table of Authorities ................. ................................... ...... ................................................. iii
1.
Opinions Below ........................................................................................................ 1
2.
Jurisdictional Statement ...................................................................................... ...... 2
3.
Constitutional And Statutory Provisions ..... ..... ..................................... .. .... .......... ...2
4.
Statement Of The Case .................................................... ... .... ........ ... ........... ........ ....3
5.
Summary Of Argument. ............................. .. ................ ..................... ........ ...... ... ....... 8
6.
Reasons For Granting The Writ.. ......................................... .... ............. ................. . 10
7.
A.
This Court Should Grant, Vacate, And Remand For The Ninth Circuit
To Reconsider In The First Instance Under Reed Its Decision That
The Statute Of Limitations Commences After The State Trial Court
Ruling Rather Than At The End Of The State Appellate Litigation ........... 10
B.
In The Alternative, The Court Should Grant A Writ Of Habeas Corpus
To Determine Whether The One-Year Statute Of Limitations Under
28 U.S.C. § 2255(f)(4) Commences Only After Final Resolution Of
State Court Proceedings On A Question Of State Law Necessary To
The Defendant's Federal Constitutional Claim ..................... ... ................. .14
1.
The Plain Meaning Of "Claim Or Claims" In § 2255(f)(4)
Requires A "Present And Complete" Claim, As In Reed, Not
A Potential Constitutional Claim ...................................................... 14
2.
The Policies Of Federalism, Comity, Consistency, Judicial
Efficiency, And Fairness Support Reading § 2255(f)(4) As
Requiring Finality Of State Court Determinations Of State
Law ............................................................................................... .... 16
3.
If There Were Ambiguity, The Rule Of Lenity And Doctrine
Of Constitutional Avoidance Would Apply ..................................... 19
Conclusion ..................................... .. ............................ ..... ............... ....... ................ 21
INDEX TO APPENDIX
Ninth Circuit Memorandum ........................................ ... ...................... ....... ... .. ............. .. .... 1
District of Oregon Opinion and Order ................................................... ............................. 5
Ninth Circuit Order Denying Petition for Rehearing .......................................... .............. 11
District Court Order granting a certificate of appealability ................... ........................... 12
11
TABLE OF AUTHORITIES
Page
SUPREME COURT OPINIONS
Barefoot v. Estelle,
463 U.S. 880 (1983) ............................................................ ....................................... 16
Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Fer bar Corp. of Cal.,
522 U.S. 192 (1997) ....................................................................... .. ...................... 9, 11
Bell v. Maryland,
378 U.S. 226 (1964) ................................................................ ... ....................... ......... 16
Carey v. Saffold,
536 U.S. 214 (2002) ................................... .... .............................. .............................. 13
Clark v. Martinez,
543 U.S. 371 (2005) ................................................................................................... 20
Coleman v. Thompson,
501 U.S. 722 (1991) ............... ................. ..... ......................... ...... ............................... 17
Duncan v. Walker,
533 U.S. 167 (2001) ................................................................................................... 17
Estelle v. McGuire,
502 U.S. 62 (1991) ..................................................................................................... 13
Green v. Brennan,
578 U.S. 547 (2016) ......................... ..... ..................................................................... 19
Heck v. Humphrey,
512 U.S. 477 (1994) ......................... .................................................................... 16, 18
Hill v. Lockhart,
474 U.S. 52 (1985) ......................................................... ...... ...... .... .............................. 7
Holland v. Florida,
560 U.S. 631 (2010) ....................................... ..................................................... ....... 19
Johnson v. United States,
544 U.S. 295 (2005) ............................................................................... .............. 14, 15
Lawrence v. Chater,
516 U.S. 163 (1996) ................................................................................................... 10
Leocal v. Ashcroft,
543 U.S. 1 (2004) ....................................................................................................... 15
McDonough v. Smith,
139 S. Ct. 2149 (2019) ........................ ........................................................... 11, 12, 18
Preiser v. Rodriguez,
411 U.S. 475 (1973) ....................................................... ....................................... 16-17
Reed v. Goertz,
143 S. Ct. 955 (2023) ............................................. 8-9, 9, 10, 11 12, 13, 14, 15, 16, 21
Rose v. Lundy,
455 U.S. 509 (1982) ..................................................... ..... .................. ....................... 17
Sanders v. United States,
373 U.S. 1 (1963) ................................ ....... ................ ................... ............................. 17
Skinner v. Switzer,
562 U.S. 521 (2011) ................................................................................................... 11
Strickland v. Washington,
466 U.S. 668 (1984) .............................. .................... ..... .................................... 6, 7, 16
United States v. Granderson,
511 U.S. 39 (1994) .................................. ................................................................... 20
United States v. Santos,
553 U.S. 507 (2008) .................................................................................................... 20
United States v. Wiltberger,
18 U.S. 76 (1820) ....................................................................................................... 20
Ramos v. Louisiana
140 S. Ct. 1390 (2020) ............................................................................................... 13
Wainwright v. Goode,
464 U.S. 78 (1983) .................................................... ........ ................... ...................... 17
Wellons v. Hall,
558 U.S. 220 (2010) .......................................................... ......................................... 10
IV
Woodford v. Ngo,
548 U.S. 81 (2006) ..................................................................................................... 13
Zinermon v. Burch,
494 U.S. 113 (1990) ........ ........................................................................................... 12
U.S. CONSTITUTION
U.S. CONST, Art. I, § 9, cl. 2 ........................................................................................... 19
U.S. CONST. amend. VI ................. ..................................................... .. ............................. 3
UNITED STATES CODE
18 U.S.C. § 2421(a) ....................................................................................................... 3, 4
28 u.s.c. § 1243 ............................................................................................................... 2
28 U.S.C. § 1254(1) ............................ .............................................................................. 2
28 U.S.C. § 2253(c)(2) ...................................................................................................... 2
28 u.s.c. § 2254 ................................ ....................................................................... 13, 17
28 U.S.C. § 2255 ..................................... 1, 2, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 20
42 u.s.c. § 1983 ................ ................................................................. 9, 10, 11, 12, 16, 17
V
No. - - -- - - -- -
IN THE SUPREME COURT
OF THE UNITED STATES
AKIAZ MARQIEZ KING,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition For Writ Of Certiorari To
The United States Court Of Appeals
For The Ninth Circuit
The petitioner, Akiaz Marqiez King, respectfully requests that a writ of certiorari
issue to review the judgment of the United States Court of Appeals for the Ninth Circuit
entered on December 5, 2022, affirming the dismissal ofhis motion under 28 U.S.C. § 2255
as untimely.
1.
Opinions Below
The district court dismissed as untimely Mr. King's §2255 motion to vacate his
sentence in an unpublished opinion on October 19, 2021 (Appendix 5). On October 28,
2021, the district court issued a certificate of appealability on the statute of limitations issue
1
under 28 U.S.C. § 2253(c)(2) (Appendix 12). The Ninth Circuit affirmed the denial of
habeas corpus relief in a memorandum disposition on December 5, 2022. (Appendix 1).
United States v. King, No. 21-35948, 2022 WL 17411385 (9th Cir. Dec. 5, 2022). The
Ninth Circuit denied panel and en bane rehearing on February 17, 2023 (Appendix 11).
2.
Jurisdictional Statement
This Court's jurisdiction is invoked under 28 U.S.C. §§ 1243, 1254(1), and 1291.
3.
Constitutional And Statutory Provisions
Under 28 U.S.C. § 2255(a), "[a] prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United States ... may
move the court which imposed the sentence to vacate, set aside or correct the sentence."
The statute of limitations for § 2255 motions states:
A I -year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of( I) 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). The Sixth Amendment provides:
2
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
U.S. CONST. amend. VI.
4.
Statement Of The Case
On July 12, 2017, Mr. King pleaded guilty to a superseding information charging
him with violation of 18 U.S.C.
~
242l(a), transporting an individual in interstate
commerce for purposes of prostitution. United States v. King, 3:16-cr-00351, ECF 47, 52
(D. Or.). 1 The offense does not require federal sex offender registration. ECF 127-1 at 2.
In the plea agreement, the parties agreed that the question of state registration was
unresolved, with the opinion of defense counsel being that no such registration was
required:
Sex Offender Registration: The defendant may be required to register as a
sex offender under state law. The defendant does not believe he will be
required to register and the government takes no position on whether he is
required to register as a sex offender.
ECF 51 at 3.
Mr. King's attorney, who actively practiced in both state and federal courts, filed a
post-sentence declaration stating, "Mr. King did not want to plead guilty to the offense
1
References to the record below are to this case with the Electronic Case Files
(ECF) number for the specific document.
3
charged in the information if it meant he would be required to register as a sex offender
under state or federal law." ECF 115 at 2. A later declaration elaborated on how defense
counsel's advice on sex offender registration was critical to the entry of the guilty plea:
4.
I ultimately negotiated a plea which allowed Mr. King to plead to a
single charge of interstate transportation for the purpose of engaging in
prostitution, in violation of 18 U.S.C. § 2421(a). That charge did not require
Mr. King to register as a sex offender under federal law. I did not believe that
the charge would require Mr. King to register as a sex offender under the
applicable state law, which was Oregon law.
5.
I advised Mr. King of my analysis on this issue, because I knew that
one of Mr. King's strongest considerations when deciding whether to accept
the plea was the question of sex offender registration. I know that Mr. King
relied on my advice about the registration component of this charge when
deciding to accept the government's offer and plead guilty to the charge.
ECF 127-1 at 2.
On October 18, 2017, the district court sentenced Mr. King to a term of
imprisonment of 19 months with three years of supervised release. ECF 61. The judgment
did not include a check mark under "Mandatory Conditions" requiring compliance with
the Sex Offender Registration and Notification Act "or any state sex offender registration
agency .... " ECF 62 at 3.
After he began his federal supervision, Mr. King's federal probation officer, based
on consultation with the state police, instructed Mr. King that his conviction required him
to register as a sex offender under state law, contrary to the advice he had received from
his attorney. ECF 115 at 2-3. On February 27, 2018, Mr. King's attorney filed an
emergency motion in the district court requesting that the probation office not require Mr.
4
King to register. ECF 64. As defense counsel explained in his declaration, he believed the
order to register resulted from legal error:
8.
I told Mr. King that, despite the opinion of the State Police, I still
believed that he was not required to register under state law. I attempted to
speak with someone with the State Police to understand the basis for its
opinion, but no one would provide that explanation.
ECF 115 at 3. After defense counsel noted his intent to seek declaratory relief in state court
to remedy the error, the district court granted an emergency motion on February 28, 2018,
in a Minute Order that again took no position on the question of Oregon law:
The Court directs the Probation Office not to take any action against
Mr. King for not registering as a sex offender during the pendency of the
state court litigation on the matter, but [the court] takes no position on
whether Mr. King is required to register by state law.
ECF 65.
On March 12, 2018, Mr. King's counsel filed a declaratory relief action in the
Multnomah County Circuit Court. ECF 127-1 at 2-3. Shortly thereafter, the state trial court
ruled from the bench, with no written opinion, that the federal offense qualified for
registration under Oregon law. ECF 12 7-1 at 3. As a consequence, the district court vacated
the stay on October 20, 2021. ECF 134. Mr. King's attorney filed an appeal from the state
trial court ruling. He continued to stand by his initial position and advised Mr. King that
the state trial court's ruling was erroneous and would likely be reversed on appeal:
12.
I believed I had an excellent case for appeal of Judge Immergut's
decision under Oregon law ....
5
13.
I conveyed my belief to Mr. King that I thought we had a strong case
under Oregon law, both at the time we were pursuing the matter before the
Circuit Court and on appeal.
Id.
Contrary to counsel's expectation, the Oregon Court of Appeals affirmed the ruling
of the circuit court without opinion on November 27, 2019, and issued the appellate
judgment on May 21, 2020, after the Oregon Supreme Court denied review. Id. at 4; King
v. Or. Dep 't of State Police, No. A168712, 452 P.3d 1099 (Table) (Or. Ct. App. Nov. 27,
2019), rev. denied, 460 P.3d 1014 (Table) (Apr. 9, 2020).
On September 29, 2020, four months after the appellate process concluded,
Mr. King filed a pro se motion to vacate his conviction in federal court pursuant to 28
U.S.C. § 2255, claiming he received ineffective assistance of counsel in violation of the
Sixth Amendment based on his counsel's advice that he would not be required to register
as a sex offender under Oregon law. Under Stricklandv. Washington, a claim of ineffective
assistance of counsel has two components: 1) "that counsel's performance was deficient";
and 2) "that the deficient performance prejudiced the defense." 466 U.S. 668, 687 (1984).
Mr. King claimed that the state litigation established both prongs:
My lawyer told me that I would not have to register as a sex offender for this
conviction, and that was central to my decision to accept the plea offer. In
the plea negotiations, the government agreed that I did not have to register as
a sex offender under federal law. I would not have pled guilty if I had been
informed I would be required to register. After my sentence, my lawyer
litigated this issue for me in the state courts to get a ruling that this conviction
did not require me to register, but he lost. Now the state courts say that based
on this conviction, I must register. I feel I was misled into taking this plea by
both the prosecutor and my lawyer, and my plea was not knowing and
6
voluntary because it was based on a mis[t]ake of fact and law. I would like
to withdraw my plea and to start over with[ o]ut this incorrect advice about
the registration requirement.
ECF 112 at 4; see Hill v. Lockhart, 474 U.S. 52, 59 (1985) (in the guilty plea context,
Strickland prejudice is established by showing a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty). Mr. King's form § 2255 motion
explained his attorney's unsuccessful efforts through the Oregon Supreme Court to resolve
the issue, concluding: "Now it is clear that my lawyer was incorrect in his advice to me,
and I now want to file this 2255 to fix that error that affected my plea." ECF 112 at 3.
The government's response requested dismissal of the motion on statute of
limitations grounds. ECF 114. In granting dismissal, the federal district court reasoned that
the initial state trial court decision denying Mr. King's request for declaratory relief
provided him notice that his attorney's advice was incorrect, which was all that he needed
to pursue his ineffective assistance of counsel claim, even though the pending appeal could
have ultimately vindicated that advice. Appendix 7 ("While he did not yet know that the
Supreme Court of Oregon agreed with Judge Immergut, challenges to federal sentences do
not require an exhaustion of state remedies."). The district court posited that Mr. King
should have pursued parallel state and federal proceedings to comply with the statute of
limitations:
King could have sought relief long before the Oregon Supreme Court
endorsed Judge Immergut's order that King register as a sex offender. The
decision did not remove a procedural hurdle, nor did it provide any new
information to King. Instead, it merely provided additional confirmation of
7
a fact that King was already aware of: Oregon law requires him to register as
a sex offender.
Appendix 8.
Mr. King appealed to the Ninth Circuit, asserting that the statute of limitations
should not be construed to commence until after the appeal became final: "[I]t was not until
the Oregon Supreme Court declined to hear the issue, allowing the ruling of the Multnomah
County Circuit Court to stand, that counsel's advice was conclusively proven to be
erroneous." United States v. King, No. 21-35948, Docket Entry 6, at 10 (9th Cir. filed
March 21, 2022).
The Ninth Circuit affirmed. Its memorandum opinion set the state trial court's ruling
as the date the statute of limitations commenced: "After that ruling, King was aware that
his attorney was wrong, which should have been no surprise given King's
acknowledgement of uncertainty in the plea agreement, the probation officer's instruction
to register, and the state police's demand that he register." Appendix 3. The Ninth Circuit
concluded that it did not matter that the state opinion was still on review and, thus, that
counsel's original advice might still have been deemed correct: "We are unpersuaded by
King's argument that the § 2255 filing deadline did not begin to run until after he sought
appellate review of the Oregon circuit court's ruling." Appendix 4.
5.
Summary Of Argument
This Court should grant certiorari, vacate the affirmance below, and remand this
case for reconsideration in light of this Court's intervening ruling in Reed v. Goertz, 143
8
S. Ct. 955 (2023). In Reed, which was decided after the Ninth Circuit denied rehearing
below, this Court ruled that the statute of limitations for a federal cause of action under 42
U.S.C. § 1983 claiming a violation of procedural due process runs not from the date of the
state trial-level ruling, but from the date of the final state appellate decision. 143 S. Ct. at
961. The key to the decision in Reed was that the constitutional claim accrued not when
the initial deprivation of liberty occurred, but upon the finality of the state proceedings
seeking a remedy: "the statute of limitations begins to run when the plaintiff has a
'complete and present cause of action.'" Id. ( quoting Bay Area Laundry and Dry Cleaning
Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)).
The "core principles of federalism, comity, consistency, and judicial economy"
articulated in Reed apply equally here, as does the Court's admonishment to avoid the
"senseless duplication" of efforts implicated by parallel state and federal litigation. Id.
Because § 1983 and § 2255 both provide remedies for constitutional violations, the same
policies are at issue, supporting consistent interpretation of the statute of limitations under
both provisions. Because Reed was decided only after the Ninth Circuit denied rehearing
below, this Court should grant, vacate, and remand the case for the Ninth Circuit to consider
its decision in light of Reed's reasoning in the first instance.
In the alternative, the Court should grant the writ for full merits briefing on the
exceptionally important issue of when the statute of limitations begins under 28 U.S.C.
§ 2255(f)(4) in a case where the federal constitutional claim depends on a question of state
law being litigated in state court. Under both the plain language of § 2255(f) and the
9
policies of federalism, comity, and judicial economy, the statute of limitations should be
deemed to commence after the state court appellate process is complete, establishing that
the advice that led to Mr. King's guilty plea was incorrect. If there were ambiguity, the
statutory construction consistent with Reed is supported by the rule of lenity and the
doctrine of constitutional avoidance. The rules for§ 2255 litigants should treat the diligent
litigant fairly rather than creating a trap for the unwary.
6.
Reasons For Granting The Writ
A.
This Court Should Grant, Vacate, And Remand For The Ninth Circuit
To Reconsider In The First Instance Under Reedits Decision That The
Statute Of Limitations Commences After The State Trial Court Ruling
Rather Than At The End Of The State Appellate Litigation.
"A GVR is appropriate when 'intervening developments ... reveal a reasonable
probability that the decision below rests upon a premise that the lower court would reject
if given the opportunity for further consideration, and where it appears that such a
redetermination may determine the ultimate outcome' of the matter." Wellons v. Hall, 558
U.S. 220,225 (2010) (quoting Lawrence v. Chater, 516 U.S. 163, 167 (1996)). This is a
classic case where that procedure is warranted. If the lower courts had the benefit of Reed
and its reasoning regarding federal statutes of limitations and parallel state and federal
proceedings, they would likely have come to a different conclusion and reached the merits
of the § 2255 motion.
In Reed, this Court addressed the relationship between state litigation and the federal
statute of limitations under 42 U.S.C. § 1983. 143 S. Ct. at 961. Mr. Reed was convicted
10
in Texas of murder and sentenced to death. Eighteen years after the murder, he filed a
motion in Texas state court requesting DNA testing on items that he asserted would help
identify the true perpetrator of the crime. Id. at 959-61. Upon denial of the motion in the
state trial court and denial of rehearing by the Texas Court of Criminal Appeals, he brought
suit under§ 1983 in federal court under Skinner v. Switzer, 562 U.S. 521 (2011), asserting
that the post-conviction DNA testing law failed to comply with procedural due process. Id.
at 960. The district court dismissed his complaint, and the Fifth Circuit affirmed on grounds
of untimeliness, holding that the two-year statute of limitations began to run on the date
the state trial court denied relief, not when the appellate court denied rehearing. Id.
This Court reversed. The Court's reasoning was based on the federal statute of
limitations standard: "As a general matter, the statute oflimitations begins to run when the
plaintiff has a 'complete and present cause of action."' Id. at 961 (quoting Bay Area
Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192,201
(1997)). "To determine when a plaintiff has a complete and present cause of action, the
Court focuses first on the specific constitutional right alleged to have been infringed." Id.
(citing McDonough v. Smith, 139 S. Ct. 2149, 2155 (2019).
In Reed, the right involved was procedural due process. The Court found that a
complete and present cause of action for a violation of procedural due process required
both 1) the state action depriving a person of rights, and 2) "inadequate state process." Id.
Thus, the Court held that the due process violation was not complete until the state appellate
proceedings concluded without any remedy being afforded. Id. ("[T]he claim is 'complete'
11
only when 'the State fails to provide due process."') (quoting Zinermon v. Burch, 494 U.S.
113, 125 (1990)).
The Court described this conclusion as "straightforward" and noted that a contrary
result would encourage parallel litigation, undermining "core principles of federalism,
comity, consistency, and judicial economy." Id. at 961-62 (quoting McDonough, 139 S.
Ct. at 2158). Because the federal statute of limitations would commence before the state
process concluded, "the plaintiff would likely continue to pursue relief in the state system
and simultaneously file a protective federal § 1983 suit challenging that ongoing state
process." Id. At 962. "We see no good reason for such senseless duplication." Id.
Moreover, the Court reasoned that its holding would advance "systemic benefits" because
"the state appellate process may cure" the constitutional flaws and render the federal suit
unnecessary. Id.
The analysis in Reed applies equally to the Sixth Amendment right to counsel claim
at issue here under the § 2255(f)(4) statute of limitations. In the context of the present case,
the Sixth Amendment claim of ineffective assistance of counsel was not "present and
complete" until the state courts finally determined that Mr. King's attorney's advice was
incorrect. By holding that the federal constitutional claim became available while the
potentially dispositive state proceedings were still ongoing, the Ninth Circuit's opinion
also goes against the strong policy reasons for avoiding parallel state and federal litigation
articulated in Reed. Indeed, just as in Reed, a favorable state court ruling on appeal would
12
have negated the federal constitutional claim entirely, making the § 2255 motion
unnecessary.
Here, the question whether Mr. King was required to register as a sex offender in
Oregon was a question of state law that, analogously to federal litigation under 28 U.S.C.
§ 2254, should have been finally determined by the state courts before the federal court
was called upon to weigh in. Woodford v. Ngo, 548 U.S. 81, 92 (2006) (petitioner must
exhaust all state remedies before seeking federal habeas corpus review); Carey v. Saffold,
536 U.S. 214,220 (2002) (requiring finality of all state remedies for exhaustion purposes);
see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("Today, we reemphasize that it is
not the province of a federal habeas court to reexamine state-court determinations on statelaw questions."). If the federal statute of limitations commences before state-court
proceedings on the controlling question have concluded, litigants will unnecessarily clutter
the federal courts with protective filings without advancing the goals of diligence and
finality underlying the statute of limitations.
Under this Court's standard for issuance of a GVR, the Court should summarily
send this case back for consideration in light of the Court's holding and reasoning in Reed.
Applying the reasoning in Reed, Mr. King acted reasonably and efficiently in filing his
federal § 225 5 motion only after the state appellate proceedings were final. See Ramos v.
Louisiana, 140 S. Ct. 1390, 1404 (2020) ("It is usually a judicial decision's reasoning-its
ratio decidendi-that allows it to have life and effect in the disposition of future
cases.'').With the advantage of this Court's decision in Reed, the lower courts would very
13
likely come to a different result, preserving Mr. King's ability to seek merits review of his
ineffective assistance of counsel claim.
B.
In The Alternative, The Court Should Grant A Writ Of Habeas Corpus
To Determine Whether The One-Year Statute Of Limitations Under 28
U.S.C. § 2255(1)(4) Commences Only After Final Resolution Of State
Court Proceedings On A Question Of State Law Necessary To The
Defendant's Federal Constitutional Claim .
In the alternative to summarily remanding this case for reconsideration in light of
Reed, this Court should grant full merits review because the Ninth Circuit's panel opinion
provides an untenable construction of the statute of limitations in 28 U.S.C. § 2255(f)(4)
that undermines important policies of federalism, comity, and judicial efficiency.
1.
The Plain Meaning Of "Claim Or Claims" In § 2255(1)(4)
Requires A "Present And Complete" Claim, As In Reed, Not A
Potential Constitutional Claim.
The relevant statutory provision states: "The limitation period shall run from the
latest of. .. 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)( 4). This Court
has already recognized that a state court decision impacting a petitioner's federal case can
be a "fact" that operates as a triggering event under§ 2255(f)(4). Johnson v. United States,
544 U.S. 295 (2005). In the context of the petitioner's success obtaining a state order of
vacatur, this Court in Johnson stated that a "fact" generated by litigation could be
discovered:
While it sounds odd to speak of discovering a fact one has generated, a
petitioner does not generate the fact of vacatur all by himself. He does, after
all, have to learn of the court's response in the state proceeding, and receiving
14
notice of success can surely qualify as a kind of discovery falling within the
statutory language.
Id. at 308. Although the Ninth Circuit opinion in the present case contemplated that the
triggering "fact" is complete as of the time of the state trial court ruling, Reed confirms,
consistently with Johnson, that the factual predicate is not established, and hence
discovered, until after appellate proceedings conclude.
When interpreting a statute, this Court gives words their ordinary or natural
meaning. Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). The plain meaning of"claim or claims"
in§ 2255(f)(4) does not mean unripe or potential claims. Until the final state court decision
established that Mr. King was required to register as a sex offender in Oregon, contrary to
the advice he received from counsel, Mr. King did not have a "claim or claims" to a Sixth
Amendment violation but only a potential claim. Had the appellate court ruled in his favor,
Mr. King's attorney would have been proven correct, and no federal constitutional claim
for ineffective assistance of counsel could have been raised. As in Reed, the
"straightforward" operation of a statute of limitations recognizes that, in order for a
petitioner to discover a claim under§ 2255, the defendant must be aware not of the potential
for the constitutional violation but of the complete and final form of the constitutional
violation.
This common sense reading of the statute of limitations aligns with the policies in
habeas corpus cases that favor respect for state court rulings on matters of state law and the
efficiencies of awaiting ripeness and avoiding duplicate litigation in parallel forums. This
15
Court has recognized that federal collateral remedies should await final state review,
including discretionary petitions. See Barefoot v. Estelle, 463 U.S. 880, 887 (1983) (the
state right to first review included "the right to petition this Court"); Bell v. Maryland, 378
U.S. 226,241 (1964) (deferring to state courts where the "case involves not only a question
of state law but an open and arguable one."). Until the Oregon appellate courts ruled, Mr.
King could not know whether either prong of Strickland was present in his case: 1) whether
the advice he received was deficient, and 2) whether the deficiency prejudiced him. 466
U.S. at 687. The straightforward reading of§ 2255(f)(4) requires full state court finality
before the federal statute of limitations is triggered.
2.
The Policies Of Federalism, Comity, Consistency, Judicial
Efficiency, And Fairness Support Reading § 2255(f)(4) As
Requiring Finality Of State Court Determinations Of State Law.
The interests of comity, federalism, consistency, and efficiency recognized in Reed
fully support construing "claim and claims" in § 225 5( f)( 4) as requiring a fully ripened,
rather than potential, cause of action. This is not surprising given that the rights advanced
through civil rights litigation under 42 U.S.C. § 1983 and those vindicated in federal postconviction review under 28 U.S.C. § 2255 are two sides of the same coin: deprivation of
federal constitutional rights addressed by either release from custody or an action for
damages and equitable relief. Heck v. Humphrey, 512 U.S. 477, 481 (1994) ("[H]abeas
corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of
his confinement and seeks immediate or speedier release, even though such a claim may
come within the literal terms of§ 1983.") (citing Preiser v. Rodriguez, 411 U.S. 475, 48816
90 (1973)). 2 Both§ 1983 and§ 2255 actions have in common the preference for questions
of state law underlying the claim to be decided in state court before the federal cause of
action is pursued.
The interests of comity and federalism require deference to state determinations of
state law at its highest level of judicial review. See Wainwright v. Goode, 464 U.S. 78, 84
(1983) ("[T]he views of the State's highest court with respect to state law are binding on
the federal courts."). In fact, for habeas corpus review of state convictions and sentences,
the exhaustion doctrine requires litigation of the federal constitutional right to the highest
state court as a predicate for seeking federal relief under 28 U.S.C. § 2254. Duncan v.
Walker, 533 U.S. 167, 179 (2001); Rose v. Lundy, 455 U.S. 509, 518-19 (1982); Coleman
v. Thompson, 501 U.S. 722, 731 (1991). Affording the state the opportunity to address the
federal constitutional issues in the first instance at the highest level of review is a necessary
predicate to later federal review. Requiring sequential litigation in this manner allows the
federal courts to consider the state's ruling and rationale, and it avoids parallel litigation of
related issues in different courts.
The same comity, federalism, and efficiency issues are present here. Until the
Oregon Supreme Court addressed Mr. King's contention that his federal conviction should
not trigger sex offender registration, the state's interpretation of state law had not been
2
Section 225 5 codified the remedy for unlawful federal convictions and sentences
in the sentencing court commensurate with what had previously been available through the
writ of habeas corpus in the district where the prisoner was confined. Sanders v. United
States, 373 U.S. 1, 14 (1963).
17
finally determined. And without that predicate, the federal constitutional rights under the
Sixth Amendment could not be adequately addressed: if the Oregon Supreme Court found
no registration was required, the Sixth Amendment question would evaporate for lack of
prejudice.
The interests in efficiency, fairness, and consistency are also paramount in the
§ 2255 context. This Court favors accrual rules that avoid parallel litigation in state and
federal courts regarding the same subject matter. See McDonough, 139 S. Ct. at 2158
Gudicial economy weighs in favor of accrual rules that avoid para11e11itigation in state and
federal courts); Heck, 512 U.S. at 484 (the favorable termination requirement "avoids
parallel litigation over the issues of probable cause and guilt" and supports the "strong
judicial policy against the creation of two conflicting resolutions arising out of the same or
identical transaction.") (citation omitted). By triggering the statute of limitations after state
litigation is completed, rather than at an earlier point before appellate review, this Court
would avoid the inefficiency of defendants filing protective petitions for speculative relief
that may become moot if relief is afforded in the state appellate courts. Federal courts will
not need to use "stays and ad hoc abstention" to safeguard comity while litigation proceeds
in state court. McDonough, 139 S. Ct. at 2158. Nor will federal judges be forced to guess
what interpretation of state law is actually at issue or whether the federal defendant will
need to supplement the habeas corpus petition as the state-court litigation unfolds.
Fairness is also at stake. Mr. King litigated openly, diligently, and in good faith to
resolve a question of state law essential to his Sixth Amendment claim. While engaged in
18
the state appellate process, which his attorney told him would likely succeed, Mr. King
should not have been required to rush to federal court based on speculation about the result
of the state appellate process. The state court of last resort could very well have reversed
the trial court or, at the very least, provided the missing justification for the ruling.
Slamming the courthouse doors closed, without ever addressing the merits of a diligentlypursued federal constitutional claim serves "little purpose in furthering the goals of a
limitations period" and actively negates the remedial structure of the federal habeas corpus
statute. See Green v. Brennan, 578 U.S. 547, 557 (2016) ("Starting the limitations clock
ticking before a plaintiff can actually sue for constructive discharge serves little purpose in
furthering the goals of a limitations period - and it actively negates Title VII's remedial
structure.").
3.
If There Were Ambiguity, The Rule Of Lenity And Doctrine Of
Constitutional Avoidance Would Apply.
"The importance of the Great Writ, the only writ explicitly protected by the
Constitution, Art. I,§ 9, cl. 2, along with congressional efforts to harmonize the new statute
with prior law, counsels hesitancy before interpreting AEDPA's statutory silence as
indicating a congressional intent to close courthouse doors that a strong equitable claim
would ordinarily keep open." Holland v. Florida, 560 U.S. 631, 649 (2010). If there were
any statutory ambiguity, the Court should resolve the issue in favor of Mr. King based on
two parallel principles.
19
First, under the rule of lenity, the Court regards any ambiguity in penal statutes in
favor of the defendant. See United States v. Granderson, 511 U.S. 39, 541 (1994)
("[W]here text, structure, and history fail to establish that the Government's position is
unambiguously correct-we apply the rule of lenity and resolve the ambiguity in
Granderson's favor."); United States v. Santos, 553 U.S. 507,515 (2008) ("[P]robability is
not a guide which a court, in construing a penal statute, can safely take.") (quoting United
States v. Wiltberger, 18 U.S. 76, 105 (1820)). The triggering event for the statute of
limitations, to the extent not explicitly tied to the final decision of the state court, must be
construed in the defendant's favor for the penal consequences of the Sixth Amendment
violation to be effectively reviewed.
Second, under the doctrine of constitutional avoidance, the Court reads procedural
rules narrowly to avoid impairment of the constitutionally recognized right to habeas
corpus review. See Clark v. Martinez, 543 U.S. 371, 3 80-81 (2005) ("[W]hen deciding
which of two plausible statutory constructions to adopt, a court must consider the necessary
consequences of its choice. If one of them would raise a multitude of constitutional
problems, the other should prevail[.]"). Nothing in the statutory language of U.S.C.
§ 2255(f) hints that "claim or claims" should be read as potential claim or claims, thereby
shutting the courthouse door to a litigant who has dutifully and diligently pursued a remedy
in state court before bringing a federal constitutional claim.
20
7.
Conclusion
For the foregoing reasons, the Court should issue a writ of certiorari, either granting,
vacating, and remanding for consideration in light of Reed, or setting the matter for
resolution with full briefing.
Dated this
Jlt1ay of May, 2023¼
~ -....l,,,l---l\-- ---'r---=- --1-- - -- --
Stephen . Sady
C. Renee Manes
Attorneys for Petitioner
21
Case: 21-35948, 12/05/2022, ID: 12601737, DktEntry: 36-1, Page 1 of 4
FILED
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
DEC 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No.
21-35948
D.C. Nos.
3:20-cv-01685-MO
3: 16-cr-00351-MO-1
v.
MEMORANDUM*
AKIAZ MARQIEZ KING,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted October 19, 2022
Portland, Oregon
Before: BADE and SANCHEZ, Circuit Judges, and LEFKOW, ** District Judge.
The question presented in the certificate of appealability issued by the
district court, see 28 U.S.C. § 2253(c)(2), is whether Defendant-Appellant Akiaz
King's motion under 28 U.S.C. § 2255 to set aside his conviction based on
ineffective assistance of counsel is timely. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan H. Letkow, United States District Judge for the
N orthem District of Illinois, sitting by designation.
Appendix 1
Case: 21-35948, 12/05/2022, ID: 12601737, DktEntry: 36-1, Page 2 of 4
§§ 1291 and 2253(a). We review de novo the district court's determinations that
the motion was untimely and that equitable tolling of the filing deadline was not
warranted. See United States v. Buckles, 647 F.3d 883, 887 (9th Cir. 2011).
1.
The one-year filing deadline for King's § 2255 motion began to run
on "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(£)(4). "[T]o have the factual predicate for a habeas petition based on
ineffective assistance of counsel, a petitioner must have discovered (or with the
exercise of due diligence could have discovered) facts suggesting both
unreasonable performance and resulting prejudice." Hasan v. Galaza, 254 F.3d
1150, 1154 (9th Cir. 2001). Here, the clock began when King knew or should have
known that his attorney incorrectly advised him that he would not have to register
as a sex offender under Oregon law ifhe pleaded guilty to a violation of 18 U.S.C.
§ 2421 (a) for transportation of an individual in interstate commerce for purposes of
prostitution.
In July 2017, King acknowledged in his plea agreement that he "may be
required to register as a sex offender under state law" but that he "does not believe
he will be required to register and the government takes no position [on the issue]."
In February 2018, early in his term of supervised release, a probation officer
informed King that he was required to register as a sex offender under Oregon law.
2
Appendix 2
Case: 21-35948, 12/05/2022, ID: 12601737, DktEntry: 36-1, Page 3 of 4
On March 12, 2018, King filed an action in an Oregon circuit court, seeking a
declaration that his conviction did not require sex-offender registration. 1 In a letter
dated April 2, 2018, the Oregon Department of State Police informed King that he
was required to report as a sex offender under Oregon law. On August 28, 2018,
the Oregon circuit court ruled that Oregon law required sex-offender registration
for a violation of 18 U.S.C. § 242l(a) if committed in Oregon. King sought
appellate review, but the Oregon Court of Appeals affirmed and the Oregon
Supreme Court denied review, and judgment was entered on May 21, 2020. King
filed his § 2255 motion on September 29, 2020.
King was equipped with the factual predicate for an ineffective assistance of
counsel claim no later than August 28, 2018, when the Oregon circuit court ruled
against him. After that ruling, King was aware that his attorney was wrong, which
should have been no surprise given King's acknowledgement of uncertainty in the
plea agreement, the probation officer's instruction to register, and the state police's
demand that he register. See Hasan, 254 F.3d at 1154 n.3 (noting in the context of
1
Shortly before initiating the state-court action, King filed an emergency motion to
prohibit the Probation Office from requiring him to register as a sex offender
unless and until a state court directed him to do so. The court directed Probation to
take no action against King for failure to register during the pendency of the statecourt litigation but took "no position on whether Mr. King is required to register by
state law." This order had no bearing on the relevant question of when King
discovered that his attorney was wrong about Oregon's sex offender registration
requirements.
3
Appendix 3
Case: 21-35948, 12/05/2022, ID: 12601737, DktEntry: 36-1, Page 4 of 4
28 U.S.C. § 2244 motions that the limitations period begins with the discovery of
"facts," not with recognition of "the legal significance of those facts"). King's
§ 2255 motion, filed over two years after the Oregon circuit court's ruling, was
therefore untimely. We are unpersuaded by King's argument that the§ 2255 filing
deadline did not begin to run until after he sought appellate review of the Oregon
circuit court's ruling.
2.
Equitable tolling of a filing deadline is available where a habeas
petitioner shows "(l) 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) (internal quotations and citation
omitted). "This is a very high bar, and is reserved for rare cases." Yow Ming Yeh
v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014). King does not clear that bar, for he
points to no extraordinary circumstance that prevented him from filing his petition
on time. Cf Doe v. Busby, 661 F.3d 1001, 1010, 1015 (9th Cir. 2011) (applying
equitable tolling where petitioner was "deceived, bullied and lulled by an
apparently inept and unethical lawyer"). Thus, equitable tolling is unavailable.
AFFIRMED.
4
Appendix 4
Case 3:16-cr-00351-MO
Document 132
Filed 10/19/21
Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
UNITED STATES OF AMERICA
Case No. 3:16-cr-00351-MO
v.
AKIAZ MARQIEZ KING
OPINION AND ORDER
Defendant.
MOSMAN,J.,
This matter comes before me on Defendant Aldaz Marqiez King's Motion to Vacate or
Correct Sentence [ECF 112]. For the reasons given below, I DENY King's motion.
BACKGROUND
In July 2017, Defendant Akiaz Marqiez King signed an agreement to plead guilty to sex
trafficking in violation ofl 8 U.S.C. § 2421 (a). Plea Pet. [ECF 52]; see also Plea Agreement [ECF
51]. This plea agreement contained a clause stipulating that King "may be required to register as a
sex offender under state law." Plea Agreement [ECF 51) at ,r 13. A few months later, King was
given a nineteen-month prison sentence. J. & Commitment [ECF 62).
Soon after entering supervised release, King was told by his probation officer that he would
have to register as a sex offender under Oregon law. Def.'s Erner. Mot. [ECF 64) at 2. King
promptly challenged the requirement in state court, King v. Oregon Department of State Police,
No. 18CV09039, and I directed the Probation Office to hold any action against King for not
1 - OPINION & ORDER
Appendix 5
Case 3:16-cr-00351-MO
Document 132
Filed 10/19/21
Page 2 of 6
registering as a sex offender until those state proceedings terminated, Order [ECF 65]. ThenMultnomah County Circuit Court Judge Karin Immergut held that King was required to register
as a sex offender. Sur-reply Mem., Ex. B [ECF 129]. King appealed to the Oregon Court of
Appeals, which affirmed without opinion; the Oregon Supreme Court denied review. King v. Or.
Dep't ofState Police, No. A168712, 452 P.3d 1099 (Table) (Or. Ct. App. Nov. 27, 2019), review
denied, 460 P.3d 1014 (Table) (Apr. 9, 2020).
On September 29, 2020, King filed the motion before me: a pro se motion to vacate his
sentence pursuant to 28 U.S .C. § 2255. Mot. to Vacate [ECF 112]. In this motion, King claims that
his attorney was constitutionally deficient because be gave him inaccurate legal advice on his
requirement to register as a sex offender under Oregon law. Id. at 5.
DISCUSSION
L
Timeliness
The government argues that King's Motion to Vacate should be dismissed as untimely. 1 A
defendant seeking relief under § 2255 must file a motion within a one-year statute of limitations.
28 U.S.C. § 2255(f). Four different kinds of events may start this clock, but courts only look at the
one that happened latest. Id. The relevant starting point for this motion is "the date on which the
facts supporting the claim or claims presented could have been discovered through the exercise of
due diligence." Id. § 2255(£)(4). The parties disagree on when that date would be.
King contends that he was only able to file his motion to vacate after the Oregon Supreme
Court declined to review his motion for declaratory relief. See Mot. to Vacate [ECF 112] at 12.
Until then, it was not clear to King that his lawyer had given him incorrect advice about his
1 In its sur-reply, the government also contended that King's motion should fail on the merits. Sur-reply Mem. [ECF
129] at 12-21. Because King has not been afforded an opportunity to respond to the government's merits argument,
this opinion only addresses the timeliness of King's motion. See Smith v. Marsh, 194 F.3d I 045, l 052 (9th Cir.
1999) ("[A]n argument raised for the first time in a reply brief. .. is not an argument we may consider here.").
2 - OPINION & ORDER
Appendix 6
Case 3:16-cr-00351-MO
Document 132
Filed 10/19/21
Page 3 of 6
requirement to register as a sex offender under state law. Id By this count, King could not file the
instant motion until April 9, 2020, meaning his eventual filing on September 29, 2020 would be
well within the statute of limitations for§ 2255 actions.
On the other hand, the government contends that the facts supporting an inefficient counsel
claim came to light long before the Oregon Supreme Court refused to take up King's state action.
King, the government contends, was tipped off to the likelihood that he would need to register as
a sex offender under state law on numerous occasions. In July 2017, when he signed a plea
agreement stipulating he "may be required to register as a sex offender under sate law." Plea
Agreement [ECF 51] at ,r 13. In February 2018, when his probation officer told him he would have
to register as a sex offender. Reply Br., Ex. 1. [ECF 127] at ,r 7. And in August 2018, when Judge
Immergut ruled that he would be required to register as a sex offender. Sur-reply Mem., Ex. B
[ECF 129]. All these events occurred well over a year before King eventually filed.
The government has the better argument. The statute of limitations in a§ 2255 action starts
running "when the prisoner knows (or through diligence could discover) the important facts, not
when the prisoner recognizes their legal significance." Hasan v. Galaza, 254 F.3d 1150, 1154 n.3
(9th Cir. 2001). At the very latest, King knew by August 2018 that he was required to register as
a sex offender under state law. While he did not yet know that the Supreme Court of Oregon agreed
with Judge Immergut, challenges to federal sentences do not require an exhaustion of state
remedies. See 28 U.S.C. § 2255.
King relies on three cases to support his timeline: Johnson v. United States, 544 U.S. 295,
305-308 (2005); Sexton v. Wainwright, 968 F.3d 607, 613-14 (6th Cir. 2020); and Shannon v.
Newland, 410 F.3d 1083, 1088-89 (9th Cir. 2005). Reply Br. [ECF 127] at 6-7. These cases, taken
together, stand for the general proposition that a state court decision can be a "fact" that restarts
3 - OPINION & ORDER
Appendix 7
Case 3:16-cr-00351-MO
Document 132
Filed 10/19/21
Page 4 of 6
the statute oflimitations in habeas cases. However, King stretches these cases too far. In Johnson,
the Supreme Court found a state court decision vacating a predicate conviction for a prisoner's
enhanced sentence could trigger a new one-year period. 544 U.S. at 302. But there, the vacatur
was a "necessary predicate" to the prisoner's ability to obtain relief under § 2255. Id. at 305.
Likewise, in Sexton, the state court proceeding was a "necessary factual predicate" for the
petitioner's habeas claim. 968 F.3d at 613 (quoting Smith v. Meko, 709 F. App'x 341,346 (6th Cir.
2017)). And while Shannon recognizes a state court decision "in the petitioner's own case" may
be a factual predicate for a habeas petition, it does not say that all such decisions are. See Shannon,
410 F.3d at 1088-89.
The Supreme Court of Oregon's denial of certiorari for King's state action was not a
necessary predicate to his ability to obtain relief. King could have sought relief long before the
Oregon Supreme Court endorsed Judge Immergut's order that King register as a sex offender. The
decision did not remove a procedural hurdle, nor did it provide any new information to King.
Instead, it merely provided additional confirmation of a fact that King was already aware of:
Oregon law requires him to register as a sex offender. As such, I find King's motion is untimely.
II.
Tolling
King contends that his motion should be subject to statutory and equitable tolling if it is
found untimely. Reply Br. [ECF 127] at 9-10. I disagree.
A. Statutory Tolling
Though § 2255 does not contain a provision for tolling, King asks that I read the tolling
provision of 28 U.S.C. § 2244(d)(2) into § 2255. Reply Br. [ECF 127] at 9. Section 2244(d)(2)
allows tolling for "[t]he time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending." But such a
4 - OPINION & ORDER
Appendix 8
Case 3:16-cr-00351-MO
Document 132
Filed 10/19/21
Page 5 of 6
device makes little sense in the context of§ 2255 claims, where exhaustion of state remedies is
not required. Nor does it make sense in the context of the instant case, where King is not
challenging a state ruling, but rather legal advice given to him by his former attorney in a federal
case. I therefore decline to extend§ 2244(d)(2) in this manner and find that King's motion is not
subject to statutory tolling.
B. Equitable Tolling2
A petitioner is eligible for equitable tolling ifhe shows "(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way." Waldron-Ramsey
v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005)). The two-part test constitutes a "very high" threshold. Id. (quoting Miranda v. Castro,
292 F.3d 1063, 1066 (9th Cir. 2002). King has failed to show he fulfills either requirement of the
test. ·
First, King has not shown that he has been pursuing his rights diligently. King argues he
"demonstrated diligence in pursuing his remedies before the state court" and discusses how he has
sought relief from the state's requirement that he register as a sex offender. Reply Br. [ECF 127]
at 10. But a§ 2255 motion attacks federal sentencing, not state sentencing. King has not established
that he has diligently pursued his right to effective assistance of counsel, which is the right he
claims in the instant motion. Even though he was aware that he was required to register as a sex
offender under state law and that his attorney's advice to the contrary was incorrect as of at least
February 2018, King did not file this motion until over two years later.
2
On reply, King stated that he "reserves the right to fully brief, and seek a hearing on, the issues of equitable
tolling." Reply Br. [ECF 127] at 10. I find that King was accorded fair opportunity to present his position on
equitable tolling and that additional briefing on the matter is unnecessary.
5 - OPINION & ORDER
Appendix 9
Case 3:16-cr-00351-MO
Document 132
Filed 10/19/21
Page 6 of 6
Second, King has not shown his timely filing was impeded by an extraordinary
circumstance. Such an extraordinary circumstance must be "an external force ... rather
than ... merely 'oversight, miscalculation or negligence on [the petitioner's] part."' WaldronRamsey, 556 F.3d at 1011 (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)). But no
external force prevented King from filing. Rather, King's filing was thwarted by an erroneous
belief that he had to exhaust state remedies before he could challenge a federal sentence.
Because King has failed to show diligence in pursuing his ineffective assistance counsel
claim or that an extraordinary circumstance stood in the way of his timely filing, I decline to apply
equilable lolling lo Lh~ instant motion.
III.
Evidentiary Hearing Requirement
An evidentiary hearing is not required for a§ 2255 petition where the record "conclusively
show[s] that the movant is not entitled to relief." United States v. Mejia-Mesa, 153 F.3d 925, 929
(9th Cir. 1998). Because King's claim is time-barred, an evidentiary hearing on his claims is not
necessary.
CONCLUSION
For the reasons discussed above, I DENY Defendant Aldaz Marqiez King's Motion to
Vacate Sentence [ECF 112].
IT IS SO ORDERED.
DATED this
Jfi-~~ f October, 2021.
6 - OPINION & ORDER
Appendix 10
Case: 21-35948, 02/17/2023, ID: 12655527, DktEntry: 40, Page 1 of 1
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FILED
FEB 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No.
21-35948
D.C. Nos.
3:20-cv-01685-MO
3: 16-cr-00351-MO-1
District of Oregon,
Portland
AKIAZ MARQIEZ KING,
ORDER
Defendant-Appellant.
Before: BADE and SANCHEZ, Circuit Judges, and LEFKOW, * District Judge.
The panel has voted to deny the petition for rehearing. Judge Bade and
Judge Sanchez have voted to deny the petition for rehearing en bane, and Judge
Lefkow so recommended. The full court has been advised of the petition for
rehearing en bane and no judge has requested a vote on whether to rehear the
matter en bane. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehearing en bane are
DENIED.
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
*
Appendix 11
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The following transaction was entered on 10/28/2021 at 3:03 PM PDT and filed on 10/28/2021
Case Name:
USA v. King
Case Number:
3: j 6-cr-00. 5 I-MO
Filer:
Document Number: 137(No document attached)
Docket Text:
ORDER: Defendant Kings Motion for Certificate of Appealability [135] is GRANTED. The Court
hereby issues a certificate of appealability as to the issue of timeliness. Defendant Kings Motion
for Continued Stay of Sex-Offender Registration Requirement [136] is DENIED. The Courts
vacated order [65] directed the Probation Office not to take action against Mr. King for not
registering as a sex offender during the pendency of his state court litigation. Because the
relevant state court litigation has ended, the Court construes Defendants Motion [136] as a
request to institute a new stay rather than a continuance of the previous order. Because Mr. King
has failed to show likelihood of success on the merits, I DENY his motion for a stay. Ordered by
Judge Michael W. Mosman. (kms)
3:16-cr-00351-MO-1 Notice has been electronically mailed to:
C. Renee Manes
renee_manes@fd.org,jill_dozark@fd.org, onc_docketing@fd.org
Gary Y. Sussman
gary.sussman@usdoj.gov, CaseView.ECF@usdoj.gov, JSmithl3@usa.doj.gov
3:16-cr-00351-MO-1 Notice will not be electronical1y mailed to:
Appendix 12
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