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United Statesr v. Nestor

United States District Court, M.D. Florida, Tampa Division

March 31, 2017

UNITED STATES OF AMERICA
v.
RUSSELL JOHN NESTOR

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE

         Nestor moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges the validity of both his controlled-substance convictions and his sentence of 420 months. A jury convicted Nestor (1) of conspiring to distribute, and to possess with the intent to distribute, mixtures containing gamma-butyrolactone (GBL), a controlled substance analogue of gamma-hydroxybutyric acid (GHB), (2) of distributing GBL that resulted in death, and (3) of possessing GBL with the intent to distribute.[1] The Eleventh Circuit affirmed the convictions and the sentence. (Doc. 172 in 01-cr-269)

         Nestor admits his motion's untimeliness but asserts entitlement to equitable tolling based on attorney abandonment. The United States moves to dismiss the motion as untimely and contests Nestor's entitlement to equitable tolling. (Doc. 6) Nestor moves for a hearing. (Doc. 11) A careful review of the present record shows that Nestor proves entitlement to equitable tolling based on attorney abandonment. The record is otherwise insufficient to determine whether Nestor overcomes the time bar.

         The Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2255(f)(1), states, “A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of . . . the date on which the judgment of conviction becomes final . . . .” The May 3, 2004, denial of certiorari began Nestor's one-year, which concluded on May 3, 2005. Nestor moved to vacate on July 1, 2013, eight years beyond the limitation established under Section 2255(f)(1). Nestor asserts entitlement to a review on the merits based only on the judicially created “equitable tolling” exception to the limitation and not under any other provision in Section 2255(f).[2]

         EQUITABLE TOLLING

         Holland v. Florida, 560 U.S. 631, 645 (2010), holds that equitable tolling is sometimes available. Nestor bears the burden of proving entitlement to equitable tolling. Jones v. United States, 304 F.3d 1035, 1040 (11th Cir. 2002), cert. denied, 538 U.S. 947 (2003). To qualify for equitable tolling Nestor must prove both “extraordinary circumstances” that were beyond his control and “due diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (“Equitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.”) See cases collected in Harper v. Ercole, 648 F.3d 132, 137 (2nd Cir. 2011) (“To secure equitable tolling, it is not enough for a party to show that he experienced extraordinary circumstances. He must further demonstrate that those circumstances caused him to miss the original filing deadline.”). Nestor shows both extraordinary circumstances and due diligence.

         Extraordinary Circumstances:

         Nestor contends that his retained attorney abandoned him. As Maples v. Thomas, 132 S.Ct. 912, 924 (2012), explains, “abandonment” qualifies as an “extraordinary circumstance”:

We agree that, under agency principles, a client cannot be charged with the acts or omissions of an attorney who has abandoned him. Nor can a client be faulted for failing to act on his own behalf when he lacks reason to believe his attorneys of record, in fact, are not representing him. We therefore inquire whether Maples has shown that his attorneys of record abandoned him, thereby supplying the “extraordinary circumstances beyond his control, ” necessary to lift the state procedural bar to his federal petition.

         David Jonathan Joffe was appointed to represent Nestor on direct appeal. While the appeal was pending, Nestor's father hired investigators and began discussing with Joffe the possibility of retaining Joffe's services for post-conviction relief. (Attachment B, Doc. 9-1) The appeal concluded with the denial of certiorari on May 3, 2004 (Doc. 180), which is when Nestor's one-year limitation began.

         A little more than six months after the limitation began, Nestor's father sent to Joffe both results from the investigation and half of the agreed $20, 000 retainer. (Attachment A, Doc. 9-1) An additional $5, 000 was paid in February, 2005, and the final installment was paid a few weeks later in March. (Affidavit, ¶11, Doc. 90-1) The limitation was May 3, 2005, less than two months away. For the next four years Nestor's father attempted - but with limited success - to communicate with Joffe. When contacted by Nestor's father, Joffe claimed that he was working on the case. (Attachments C-F, Doc. 90-1) In October, 2010, Nester's father discharged Joffe (Attachment G, Doc. 90-1), and two months later he filed with The Florida Bar a formal complaint against Joffe. (Affidavit, ¶22, Doc. 90-1) On July 31, 2012, the Supreme Court publicly reprimanded Joffe and ordered the return to Nestor of the $20, 000 fee. This concluded both Joffe's involvement and the asserted basis for equitable tolling.[3]

         Nestor argues that Joffe's misrepresentation and inaction establish abandonment. Whether an attorney's inaction constitutes abandonment is necessarily dependent upon the facts under review. Downs v. McNeil, 520 F.3d 1311 (11th Cir. 2008), explains:

During the course of representation, counsel's alleged behavior ran the gamut from acts of mere negligence to acts of gross negligence to acts of outright willful deceit. In considering whether the conduct of counsel was extraordinary, we will not dissect the continuing course of conduct in which counsel engaged, but rather view counsel's behavior as a whole. Consequently, although the culminating event which rendered Downs' federal habeas petition untimely was counsel's late filing of the petition, that ordinary act of negligence cannot be isolated from counsel's allegedly egregious misconduct.

Holland, 560 U.S. at 651, cites cases in which the “lower courts have specifically held that unprofessional attorney conduct may, in certain circumstances, prove ‘egregious' and can be ‘extraordinary'. . . .” Nestor emphasizes three of the cases Holland cites, specifically, Baldayaque v. United States, 338 F.3d 145 (2nd Cir. 2003), Spitsym v. Moore, 345 F.3d 796 (9th Cir. 2003), and United States v. Martin, 408 F.3d 1089 (8th Cir. 2005). Each case, including Holland, features egregious attorney misconduct both prejudicial to the client and similar to Joffe's misrepresentation and inaction. In sum, Nestor proves abandonment that meets the “extraordinary circumstance” requirement for ...


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