Super Diligence Can Trigger Statute of Limitations

Travis Denny was sentenced to 240 months in jail for possession with intent to distribute cocaine. He told his attorney, Joe Romero, that he wanted to appeal. Romero explained that an appeal was probably a bad idea, since Denny had received a substantial downward variance from the guideline range of 324 to 405 months, and could receive more time if the government challenged the downward variance on appeal.

Attorney-client communication wasn't so good here. Denny thought the appeal was happening. Romero didn't.

Denny missed the filing deadline, and asked the Tenth Circuit Court of Appeals for a certificate of appealability. The appellate court granted the COA, but denied relief because Denny's motion challenging his sentence was untimely.

Let's consider the timeline of this case to see where (and when) it all went wrong.

Denny was sentenced in September 2007. After he didn't receive word about his appeal, Denny called Romero's office from prison in January or February of 2008, and learned that Romero was on military duty at Guantanamo Bay.

In September 2008, the district court clerk's office told Denny that no appeal had been filed. In January 2009, Romero, (now back from Cuba) confirmed that he had not filed an appeal. Romero received his case file in July or August 2009. A law library inmate prepared a §2255 motion, which Denny filed pro se in November 2009.

There is a one-year statute of limitations for filing a §2255 motion. The limitations period commences on the latest of four dates:

1. When judgment of conviction becomes final;
2. When the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed,
3. When the right asserted was initially recognized by the Supreme Court, if pertaining to a newly-recognized right
4. When the facts supporting the claim could have been discovered through the exercise of due diligence.

Denny made a unique argument that limitations period didn't begin to run until January 2009, when Romero's failure to file a notice of appeal "could have been discovered through the exercise of due diligence." He conceded that the clerk told him in 2008 that no appeal had been filed, but countered that he lacked "actual knowledge" because he had reason to doubt the clerk's statement. Denny further argued that he shouldn't be penalized for his "super diligence" in contacting the clerk.

The Tenth Circuit Court of Appeals concluded that it was irrelevant whether Denny learned about his appellate status by serendipity, diligence, or exceptional diligence. The question was whether he acted with reasonable diligence after the information was acquired. Once Denny could have discovered the pertinent facts, the §2255 motion had to filed within one year. The court noted, "Discovery rules are based on equitable principles and there is nothing equitable about a rule that permits the claimant to be dilatory in pursuing a lead if the lead was acquired through special effort."

Related Resources:

• U.S. v. Denny (Tenth Circuit Court of Appeals)
• Court Affirms Tim DeChristopher's Oil Bidding Conviction (FindLaw's Tenth Circuit Blog)
• Tenth Circuit: One-Year Statute of Limitations Barred Defendant's Motion for Relief Under 28 U.S.C. § 2255 (CBA CLE)
• Fake Lawyer Howard Kieffer Wins Sentencing Error Appeal (FindLaw's Tenth Circuit Blog)