     Case: 08-10482         Document: 00511035825          Page: 1    Date Filed: 02/25/2010




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                       Fifth Circuit

                                                    FILED
                                                                              February 25, 2010

                                           No. 08-10482                    Charles R. Fulbruge III
                                                                                   Clerk

UNITED STATES OF AMERICA

                                                       Plaintiff - Appellee
v.

JOSEPH R. KIRKHAM

                                                       Defendant - Appellant




                        Appeal from the United States District Court
                             for the Northern District of Texas
                                  USDC No. 4:02-CR-11-1


Before JOLLY and DENNIS, Circuit Judges, and JORDAN, District Judge.*
PER CURIAM:**
        Joseph R. Kirkham appeals the district court’s dismissal of his motion
filed pursuant to 28 U.S.C. § 2255. The district court found that the motion was
untimely filed and that Kirkham was not entitled to the benefit of equitable
tolling. We granted a certificate of appealability (“COA”) for the issue of whether
the district court abused its discretion by refusing to apply equitable tolling.



        *
             District Judge, Southern District of Mississippi, sitting by designation.
        **
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                               I.
       In 2003, a jury convicted Kirkham of health care fraud in violation of 18
U.S.C. § 1347. He was sentenced to 120 months of imprisonment. After this
court remanded for resentencing in the light of United States v. Booker, 543 U.S.
220 (2005), United States v. Kirkham, 129 F. App’x 61 (5th Cir. 2005)
(unpublished), the district court imposed the same 120-month sentence. This
court affirmed the sentence, and the Supreme Court denied certiorari on October
10, 2006. United States v. Kirkham, 182 F. App’x 378 (5th Cir.) (unpublished),
cert. denied, 549 U.S. 966 (2006).
       The statute governing § 2255 motions establishes a one-year period of
limitation for the filing of such motions. 28 U.S.C. § 2255(f). In Kirkham’s case,
that period began to run when the Supreme Court denied certiorari.
Accordingly, he had until October 10, 2007, to file his § 2255 motion. See 28
U.S.C. § 2255(f)(1) (providing that the one-year limitation period starts on the
date the conviction becomes final); United States v. Thomas, 203 F.3d 350, 355
(5th Cir. 2000) (holding that conviction became final when Supreme Court
denied certiorari).
       On October 5, 2007, five days before the end of the one-year limitation
period, Kirkham delivered his § 2255 motion to prison officials for mailing.
Kirkham’s envelope used the address of the clerk of a Texas state district court
rather than the address of the clerk of the federal district court in the same city.
The state court returned the motion to Kirkham on October 12, and he mailed
it to the proper federal district court on October 15.1 The district court ordered



       1
         In his § 2255 motion, Kirkham alleged that his counsel rendered ineffective assistance
by failing to rebut factual findings of the presentence report that provided the basis for his
sentence. He also contended that his counsel was ineffective for making a baseless argument
for a jury trial on sentencing issues and for failing to present arguments relevant to sentencing
under the post-Booker sentencing regime.


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Kirkham to show cause why his motion should not be dismissed as time-barred.
In response to the show-cause order, Kirkham explained to the district court that
he had intended to mail the motion to the federal court but used the incorrect
address, as a result of his misunderstanding of the usage of “district clerk” in the
court directory in the prison law library. Kirkham stated that the late filing was
done “through his clerical error.”
      On the Government’s motion, the district court dismissed Kirkham’s §
2255 motion as untimely and denied a COA. This court granted a COA on
whether Kirkham is entitled to equitable tolling in the light of Burnett v. New
York Cent. R. Co., 380 U.S. 424 (1965) (tolling limitation period where claim was
filed in wrong court) and Perez v. United States, 167 F.3d 913 (5th Cir. 1999)
(following Burnett).
                                        II.
      Kirkham’s § 2255 motion, which was delivered to prison officials for
mailing to the federal district court on October 12, is untimely unless equitable
tolling applies.
      “The one-year limitations period of [§ 2255(f)] is a statute of limitations
that is not jurisdictional and is therefore subject to equitable tolling.” United
States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002).           “Equitable tolling is
permissible only in ‘rare and exceptional circumstances.’” Id. (quoting Davis v.
Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). “Equitable tolling applies
principally where the plaintiff is actively misled by the defendant about the
cause of action or is prevented in some extraordinary way from asserting his
rights.”   Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (internal
quotation marks and citation omitted). “[T]he principles of equitable tolling . .
. do not extend to what is at best a garden variety claim of excusable neglect.”
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). Unfamiliarity
with the legal process does not justify equitable tolling. Turner v. Johnson, 177

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F.3d 390, 392 (5th Cir. 1999). We review the district court’s ruling on equitable
tolling for abuse of discretion. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.
1999).
      This court granted a COA on the question whether Burnett and Perez
support application of the doctrine of equitable tolling in Kirkham’s case,
because the plaintiffs in those cases benefitted from tolling when they filed suit
in the wrong court. We conclude, for the reasons that follow, that Burnett and
Perez are distinguishable.
      In Burnett, the petitioner filed an action against the railroad in Ohio state
court under the Federal Employers’ Liability Act. Burnett, 380 U.S. at 424.
Although the Ohio state court had jurisdiction over the action, and the railroad
was properly served with process, the state-court action was dismissed for
improper venue.     Id. at 425.   Eight days after the state-court action was
dismissed, the plaintiff filed an identical action in federal district court. The
district court dismissed the action on the ground that it was untimely and barred
by the FELA’s limitation provision. Id. The Supreme Court held that “when a
plaintiff begins a timely FELA action in a state court of competent jurisdiction,
service of process is made upon the opposing party, and the state court action is
later dismissed because of improper venue, the FELA limitation is tolled during
the pendency of the state action.” Id. at 427. The Court found that tolling the
statute of limitations under such circumstances effectuated “the basic
congressional purposes in enacting this humane and remedial Act, as well as
those policies embodied in the Act’s limitation provision.” Id. 427-28. After
noting that “[s]tatutes of limitations are primarily designed to assure fairness
to defendants,” id. at 428, the Court pointed out that the railroad was served
with process and “could not have relied upon the policy of repose embodied in the
limitation statute, for it was aware that petitioner was actively pursuing his
FELA remedy.” Id. at 429-30. Furthermore, the plaintiff “did not sleep on his

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rights but brought an action within the statutory period in the state court of
competent jurisdiction” and “failed to file an FELA action in the federal courts,
not because he was disinterested, but solely because he felt that his state action
was sufficient.” Id. at 429. The Court observed that the limitation period clearly
would have been tolled if Ohio law had provided for the transfer of the case to
the state court of proper venue. Id. at 431 (citing Herb v. Pitcairn, 325 U.S. 77,
78-79 (1945)). The Court reasoned that tolling the limitation period during the
pendency of the state court action would promote the desired uniformity in
FELA cases between states with transfer rules and those, like Ohio, without
such rules. Id. at 433-34.
      Kirkham’s case is distinguishable from Burnett in several important
respects.   Burnett’s FELA action was filed in a state court which had
jurisdiction, although venue was improper, and process was served on the
railroad. Kirkham’s § 2255 motion was never filed by the state court, which had
no jurisdiction over a § 2255 motion. See 28 U.S.C. § 2255(a) (providing for filing
of motion in “the court which imposed the sentence”). The Government was not
served or notified.    Finally, the national uniformity that the Court found
important in Burnett is not at issue in Kirkham’s case because state and federal
courts do not have concurrent jurisdiction over § 2255 motions.
      Perez, the other case mentioned in our order granting a COA, is also
distinguishable. In Perez, the plaintiff filed suit in state court against the Texas
National Guard in September 1991, alleging that she was injured on September
29, 1990, when an Armored Personnel Carrier displayed by the Texas National
Guard at a festival struck some camouflage netting poles that then struck the
plaintiff and knocked her unconscious. 167 F.3d at 915. Several years after the
suit was filed, the Texas National Guard advised the plaintiff’s counsel that the
guardsmen had been acting as employees of the federal government at the time
of the plaintiff’s alleged injury. Id. The state court dismissed the action on the

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basis of state sovereign immunity in June 1995. Id. Two weeks later, the
plaintiff filed a claim with the United States Army, which denied it on the basis
of the two-year statute of limitations in the Federal Tort Claims Act (“FTCA”).
Id. The plaintiff filed suit in federal district court the following May. Id. The
district court dismissed the complaint and refused to apply equitable tolling. Id.
      This court concluded that “Perez’s error . . ., misunderstanding the dual
nature of the Texas National Guard, is of the same magnitude as the error in
Burnett.” Id. at 918. The court stated that the errors in both cases “would have
been uncovered through more careful legal research” and concluded that neither
was a “garden variety claim of excusable neglect” because the plaintiffs in each
case “took some step recognized as important by the statute before the end of the
limitations period.” Id. (internal quotation marks omitted). The court also
emphasized that the erroneously filed lawsuit had provided the defendant with
all the notice required by law because the filing of the claim against the Texas
National Guard satisfied the FTCA’s requirement that the claim be presented
to the agency in writing before the end of the limitations period. Id. Moreover,
the defendant’s violation of a duty to forward a federal tort claim form to Perez
“provide[d] an alternative justification for equitable tolling.” Id. at 918-19.
      Unlike the Army in Perez, the Government had no duty to facilitate the
proper filing of Kirkham’s § 2255 motion. The untimely filing here resulted from
Kirkham’s own clerical error in addressing the envelope to the state court rather
than the federal court. Moreover, Kirkham’s incorrectly addressed motion was
never actually filed by the state court, and the Government was not served with
or notified of the motion.
      We therefore conclude that Burnett and Perez do not require application
of the doctrine of equitable tolling in Kirkham’s case. The actions in Burnett and
Perez were actually filed, albeit in the wrong courts, and the defendants were
notified of the actions against them. Furthermore, the mistaken filings in

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Burnett and Perez were based on the plaintiffs’ errors in understanding the law,
while Kirkham’s error was merely clerical. Kirkham was not misled about his
cause of action or prevented in an extraordinary way from asserting his rights.
His failure to mail his § 2255 motion to the correct court within the one-year
limitation period was, at best, a “garden variety” claim of excusable neglect,
which is insufficient to justify application of the doctrine of equitable tolling. See
Irwin, 498 U.S. at 96.2
                                              III.
       Because the circumstances of Kirkham’s case are not rare and exceptional,
the district court did not abuse its discretion by failing to apply the doctrine of
equitable tolling. The judgment of the district court is, therefore
                                                                                 AFFIRMED.




       2
         Kirkham argues that his motion was timely filed under the mailbox rule as applied
in Houston v. Lack, 487 U.S. 266 (1988), because he placed the motion in the prison mail
system before the expiration of the limitation period, even though he addressed the envelope
to the wrong court. In Houston, the Supreme Court held that the pro se prisoner’s notice of
appeal was considered to have been “filed at the time [the prisoner] delivered it to the prison
authorities for forwarding to the court clerk.” Id. at 276. Kirkham points out that the prison
log in Houston suggested that the prisoner might have mistakenly addressed the envelope
containing his notice of appeal to the post office box number of the Tennessee Supreme Court
rather than that of the Federal District Court in the same city. See id. at 268. The mailbox
rule announced in Houston does not help Kirkham. Notwithstanding the prisoner’s possible
use of an incorrect post office box in addressing the envelope, the notice of appeal in Houston
was ultimately filed in the proper federal district court without being returned to the prisoner,
and the Supreme Court did not mention further any possible role of the incorrect address. Id.
at 268-69. Furthermore, the Supreme Court stated that there was “no dispute . . . that the
notice must be directed to the clerk of the district court – delivery of a notice of appeal to
prison authorities would not under any theory constitute a ‘filing’ unless the notice were
delivered for forwarding to the district court.” Id. at 272-73. Houston v. Lack applies to
questions relating to the timing of a filing in a proper court; it does not address errors of
mailing to an improper court.




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