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    United States v. Glenn, 10th Cir. (2003)

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    This order from the United States Court of Appeals for the Tenth Circuit considers whether the one-year statute of limitations for filing a motion under 28 U.S.C. § 2255 should be equitably tolled in Glenn's case. The district court had refused to apply equitable tolling and dismissed Glenn's § 2255 motion as untimely. The appellate court affirms, finding that although Glenn's attorney failed to notify him of his direct appeal decision, Glenn was not reasonably diligent in pursuing his claims after receiving a letter informing him of the appeal decision months before the limitations period expired.

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    United States v. Glenn, 10th Cir. (2003)

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    This order from the United States Court of Appeals for the Tenth Circuit considers whether the one-year statute of limitations for filing a motion under 28 U.S.C. § 2255 should be equitably tolled in Glenn's case. The district court had refused to apply equitable tolling and dismissed Glenn's § 2255 motion as untimely. The appellate court affirms, finding that although Glenn's attorney failed to notify him of his direct appeal decision, Glenn was not reasonably diligent in pursuing his claims after receiving a letter informing him of the appeal decision months before the limitations period expired.

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    Filed: 2003-03-18 Precedential Status: Non-Precedential Docket: 01-5138

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    This order from the United States Court of Appeals for the Tenth Circuit considers whether the one-year statute of limitations for filing a motion under 28 U.S.C. § 2255 should be equitably tolled in Glenn's case. The district court had refused to apply equitable tolling and dismissed Glenn's § 2255 motion as untimely. The appellate court affirms, finding that although Glenn's attorney failed to notify him of his direct appeal decision, Glenn was not reasonably diligent in pursuing his claims after receiving a letter informing him of the appeal decision months before the limitations period expired.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    15 views4 pages

    United States v. Glenn, 10th Cir. (2003)

    Uploaded by

    Scribd Government Docs
    This order from the United States Court of Appeals for the Tenth Circuit considers whether the one-year statute of limitations for filing a motion under 28 U.S.C. § 2255 should be equitably tolled in Glenn's case. The district court had refused to apply equitable tolling and dismissed Glenn's § 2255 motion as untimely. The appellate court affirms, finding that although Glenn's attorney failed to notify him of his direct appeal decision, Glenn was not reasonably diligent in pursuing his claims after receiving a letter informing him of the appeal decision months before the limitations period expired.

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    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    MAR 18 2003

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    TERRY WAYNE GLENN,

    No. 01-5138
    (D.C. Nos. 00-CV-796-H
    and 96-CR-151-H)
    (N.D. Oklahoma)

    Defendant - Appellant.
    ORDER AND JUDGMENT
    Before KELLY and BALDOCK , Circuit Judges, and
    Judge.

    BRORBY , Senior Circuit

    We granted a certificate of appealability in this case to consider only one


    issue: was the district court correct in refusing to equitably toll the one-year
    limitations period set forth in 28 U.S.C. 2255 where defendants attorney failed

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

    to notify him of the denial of his direct appeal.

    We declined to grant a certificate

    of appealability on all other issues.


    Section 2255 allows one year from the date a judgment of conviction
    becomes final in which a defendant can file a motion to vacate, set aside, or
    correct a sentence. 28 U.S.C. 2255(1). Defendants judgment of conviction
    became final on April 5, 1999; he did not file his 2255 motion until
    September 14, 2000. But he argues that the limitations period should be equitably
    tolled because his attorney failed to notify him of this courts decision on direct
    appeal, and he did not receive a copy of that decision until sometime in July of
    2000. The district court declined to apply equitable tolling and dismissed the
    2255 motion for lack of jurisdiction because it was not timely filed.
    We review de novo the district courts dismissal of defendants motion
    as untimely.

    Woodward v. Williams , 263 F.3d 1135, 1141 (10th Cir. 2001),

    cert. denied , 535 U.S. 973 (2002). And we review the district courts refusal to
    apply equitable tolling to excuse the untimely filing for an abuse of discretion.
    Id. at 1142. Equitable tolling is only available when an inmate diligently
    pursues his claims and demonstrates that the failure to timely file was caused by

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.

    -2-

    extraordinary circumstances beyond his control.

    Marsh v. Soares , 223 F.3d

    1217, 1220 (10th Cir. 2000).


    In considering the issue of equitable tolling, the district court assumed the
    truth of defendants assertion that his attorney did not inform him of this courts
    decision until July 2000. On September 11, 1999, however, defendant received
    a letter from a paralegal firm informing him that his appeal had been decided.

    Defendant did not attempt to contact his attorney to inquire about his appeal after
    receiving the paralegal firms letter. In fact, he did nothing for another nine
    months. In early June 2000, defendant contacted the Federal Public Defenders
    office to inquire about the status of his appeal and was advised to contact his
    court-appointed attorney directly. Finally, on June 15, 2000, defendant wrote to
    his attorney, explaining that he had received a letter from a paralegal group
    referring to the dismissal of his appeal and requesting copies of his file so that he
    could prepare a post-conviction motion. The attorney promptly responded, and by
    July 3, 2000, defendant possessed all materials available for the preparation of his
    2255 motion.
    Based on these facts, the district court concluded that defendant was not
    reasonably diligent in pursuing his claims and, as a result, was not entitled to the
    The letter stated that the paralegal firm had come across the decision in
    defendants direct appeal, and it offered the firms services to attempt to gain a
    reduction in defendants sentence.

    -3-

    benefit of equitable tolling. We agree. The district court did not abuse its
    discretion in declining to apply the doctrine of equitable tolling to save
    defendants untimely motion. We AFFIRM the district courts judgment. We
    grant the Motion for Leave to Proceed on Appeal Without Prepayment of Costs or
    Fees.
    Entered for the Court

    Paul J. Kelly, Jr.


    Circuit Judge

    -4-

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