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United States v. Blankenship

United States District Court, E.D. Kentucky, Southern Division

July 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD GENE BLANKENSHIP, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge

         Defendant/Movant Donald Blankenship signed a written plea agreement on January 28, 2016, and pleaded guilty to a single count of conspiracy to distribute cocaine in Pike County, Kentucky. [Record Nos. 1, 143, 144] Nine others were charged in the conspiracy. [Record No. 1] Blankenship acknowledged responsibility for an amount of cocaine in excess of 500 grams. [See Record No. 144] As part of his plea agreement, Blankenship also agreed to forfeit his interest in certain property identified in the Indictment. [Record No. 143; Record No. 144 at ¶9] That property included a 2003 Ford F-150 Harley-Davidson-edition truck and a 2011 Diamo Discovery XLT500 all-terrain vehicle. [Record No. 1 at 11] Per Rule 32.2 of the Federal Rules of Criminal Procedure, the forfeiture became final as to Blankenship upon entry of the judgment on April 29, 2016. [Record No. 214]

         While the forfeiture was final as to Blankenship, others retained the ability to claim an interest in the property. On September 6, 2016, Blankenship’s ex-wife and minor son filed a motion claiming third-party interest in the truck and all-terrain vehicle. [Record No. 270] Their motion was unsuccessful, at least in part, because Blankenship’s divorce decree clearly laid title in the truck with him. [See Record No. 302] It seems that failure of the third-party claim gave Blankenship buyer’s remorse for the agreed forfeiture.

         Just shy of one-year following his sentencing, Blankenship filed an “Emergency Motion to Obtained Seized Property,” alleging that the seizure of the Harley truck and Diamo Discovery violated his due process rights.[1] [Record No. 303] That motion was denied because Blankenship had unambiguously agreed to forfeit his interest in the vehicles (and the agreement was finalized with entry of Judgment a year earlier). [Record No. 304]

         Within weeks, Blankenship filed a second “Emergency Motion.” [Record No. 305] He repeated the arguments raised in his first (that his due process rights were violated), and, for the first time, alleged ineffective assistance of counsel. [Id.] The relief sought in Blankenship’s second “emergency motion” was permission to file a motion under 28 U.S.C. § 2255. That motion was denied as moot because such permission is unnecessary. [Record No. 306] The Court also noted that Blankenship may not be entitled to bring a § 2255 petition solely to challenge a forfeiture judgment. [Id.]

         A standard-form “motion to vacate, set aside, or correct sentence by a person in federal custody” under 28 U.S.C. § 2255 was docketed on May 30, 2017. [Record No. 308] The envelope lacks a post-mark and the document is unsigned, but it is dated as “Executed (signed) on 5/24/2017.” [Record Nos. 308 at 13; 308-3]

         I. The Motion is Untimely.

         As an initial matter, the § 2255 motion is untimely. 28 U.S.C. § 2255(f) provides a one-year period of limitation, which begins from one of four scenarios. Here, the only scenario applicable is § 2255(f)(1), the date on which the judgment of conviction becomes final.[2] Under Fed. R. App. P. 4(b)(1)(A), the time for filing an appeal is 14 days after entry of judgment. Because Blankenship filed no such appeal, his judgment was final on May 13, 2016. See Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004). Therefore, assuming that the §2255 motion was placed in the prison mail on May 24, 2017 (as the unsigned certification suggests), it was untimely. Moreover, Blankenship’s 2nd “emergency motion” wherein he sought permission to bring a § 2255 motion was post-marked on May 15, 2016, and includes no certification of when it was placed in the prison mail (the included affidavit, signed April 26, 2017, is the same affidavit which was included in Blankenship’s earlier motion, so the date is not relevant). Therefore, the motion would be untimely even if the Court were to credit the motion was filed when Blankenship sought permission to do so.[3]

         The Court may accept Blankenship’s § 2255 petition under the doctrine of equitable tolling, but only if Blankenship “shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Jefferson v. United States, 730 F.3d 537, 549 (6th Cir. 2013) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). Here, Blankenship filed a motion for return of his property, though not a § 2255 motion, on April 26, 2017. That date appears to correspond with the Court’s entry of judgment in favor of the government on the third-party claim. [See Record No. 301] And while Blankenship expressed dissatisfaction with counsel in his April 26th motion, that motion raises a due process claim rather than assert ineffective assistance of counsel. On these facts, there is nothing to indicate that Blankenship was diligently pursuing his rights. If, as alleged, Blankenship’s counsel failed to keep his promise that he would object to the forfeiture, Blankenship was well aware of that prior to the denial of the third-party claim.

         There is no “extraordinary circumstance” that stood in the way of Blankenship bringing his § 2255 motion before May 15, 2017. Instead, it is clear that he did not see fit to do so until after his family’s third-party claim failed. “Absent compelling equitable considerations, a court should not extend limitations by even a single day.” Jurado v. Burt, 337 F.3d 638, 643 (6th Cir. 2003). Because the § 2255 motion was final more than one year from the date his conviction became final, and because there is no indication that Blankenship was diligently pursuing his right, or that any extraordinary circumstance stood in his way, equitable tolling is not warranted.

         II. Blankenship’s Claim is Not a Cognizable under § 2255.

         Blankenship’s claim is not the typical § 2255 motion.[4] Rather than seeking to reduce his term of incarceration, Blankenship merely seeks to obtain property forfeited by agreement as part of this criminal action-the Harley truck and Diamo Discovery. [Id. at 4] As grounds, Blankenship alleges that his counsel was ineffective “due to allowance of seizure of items not ripe for seizure.” [Id. at 3] While not specifically asserted in the current motion, Blankenship previously argued that the vehicles were neither purchased with proceeds from illegal activities nor used in furtherance of the drug conspiracy and, therefore, not eligible for seizure. [See Record Nos. 303 and 305.] He now argues that, during “multiple conversations,” counsel explained to him that the items were not eligible to be seized, and that such would be argued to the Court. [Record No. 308 at 4] Implicit in the motion is that counsel never raised the issue.

         In light of Blankenship’s allegations, the Court directed him to respond the question of whether he intends to waive his attorney-client privilege regarding his § 2255 motion. [Record No. 313] Blankenship timely responded, acknowledging waiver of his attorney-client privilege and making clear that his motion “is not to, in any way, unravel his plea agreement.” Instead, it is intended “only to gain the return of seized property and not to re-sentence him in any way.” [Record No. 320]

         Even if timely, the Court lacks jurisdiction to entertain Blankenship’s motion. Title 28 of the United States Code, section 2255 (a), provides that “[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” The Sixth Circuit has explained “[b]eing a procedural substitute for a habeas corpus proceeding, the right to relief under Sec. 2255 is limited by the express terms of the statute to situations where the prisoner is attacking the judgment under which he is in custody and, if successful, would be entitled to be released.” Duggins v. United States, 240 F.2d 479, 484 (6th Cir. 1957). The majority of courts to consider the issue have found that challenges to fines, restitution orders and forfeiture orders cannot be brought under 28 U.S.C. § 2255. See United States v. Trimble, 12 F.Supp.3d 742, 746 (E.D. Pa. 2014) (“[C]ourts of appeals to consider the issue have held that a claim for relief from a restitution order cannot be brought in a habeas corpus petition, whether or not the petition also contains cognizable claims for release from custody.”); United States v. Bifield, No. CR 3:12-430-CMC, 2015 WL 7776933, at *8–9 (D.S.C. Dec. 2, 2015) (collecting cases), appeal dismissed, 647 F. App’x 197 (4th Cir. 2016); United States ...


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