               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                   File Name: 17a0112n.06

                                       Case No. 14-5380

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                 Feb 17, 2017
 JOE EDWARD WEBB,                                    )                       DEBORAH S. HUNT, Clerk
                                                     )
       Petitioner-Appellant,                         )
                                                     )   ON APPEAL FROM THE UNITED
                v.                                   )   STATES DISTRICT COURT FOR
                                                     )   THE MIDDLE DISTRICT OF
 UNITED STATES of AMERICA,                           )   TENNESSEE
                                                     )
       Respondent-Appellee.                          )
                                                     )

Before: COLE, Chief Judge; BATCHELDER and COOK, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. The petitioner appeals the district court’s

judgment dismissing his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Because

the district court was correct in its determination that the petition was untimely, we AFFIRM.

                                                I.

       On January 15, 2010, Joe Webb entered guilty pleas to two counts of conspiracy to

distribute cocaine and one count of attempting to possess with intent to distribute over 500 grams

of cocaine. Webb had retained counsel, Edward DeWerff, and entered into a plea agreement in

which he waived his right to appeal any sentence within the guidelines range. The presentence

report (PSR) established Webb’s guideline range at 262 to 327 months in prison (due to a career

offender adjustment), with a 240 month statutory mandatory minimum.            The district court

sentenced Webb on January 7, 2011, and though affirming the PSR’s calculated range, found

that range excessive and instead sentenced Webb to 240 months for the conspiracy convictions

and another 240 months for the attempt conviction, to run concurrently. Webb did not appeal.
No. 14-5380, Webb v. United States


        On April 17, 2012—almost 15 months later—Webb filed a § 2255 motion to vacate, set

aside, or correct his sentence, claiming that he received ineffective assistance of counsel during

plea negotiations and sentencing because DeWerff had failed to recognize, argue, and/or

preserve the applicability of the forthcoming Fair Sentencing Act amendments, which would

have lowered the statutory mandatory minimum from 240 months to 120 months. Webb’s

theory was that the district court would have imposed a sentence lower than 240 months if it had

known that the statutory mandatory minimum was 120 rather than 240 months.

        The government moved to dismiss Webb’s § 2255 petition because it was untimely,

coming almost three months after the January 21, 2012 deadline. Webb sought equitable tolling,

arguing ineffective assistance of counsel based on his claim that he had instructed attorney

DeWerff to file the appeal but DeWerff had neglected to do so, while falsely assuring Webb that

the appeal had been filed. Given this dispute of material fact, the district court ordered a

magistrate judge to conduct an evidentiary hearing to determine whether Webb had truly

instructed DeWerff to file the appeal or had otherwise expressed a desire for an appeal.

        Following a hearing at which both Webb and DeWerff testified, the magistrate judge

determined that Webb had not asked DeWerff to file an appeal. In finding Webb not credible,

the magistrate judge cited his observation of Webb while testifying, Webb’s lying to the

prosecutor previously, and the inconsistencies in Webb’s testimony. The magistrate judge found

it “unbelievable” and “simply inconceivable” that Webb would have had three or four telephone

conversations with DeWerff—conversations Webb admitted to having—without ever asking

about the status of his appeal. Moreover, Webb asserted in his § 2255 motion that he had

instructed DeWerff to appeal the “prior convictions issue” (underlying the career offender

enhancement), but at the hearing said he had wanted to appeal the Fair Sentencing Act issue and

had not discussed appealing the prior-convictions issue; but then changed his testimony when

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No. 14-5380, Webb v. United States


challenged and said that he had asked DeWerff to appeal the prior-convictions issue. Webb also

conceded that he had a copy of his docket report in August 2011 and was aware then that

DeWerff had filed no appeal, but had not questioned DeWerff about it.1 Webb tried to bolster

his recollection of his claim that he had instructed DeWerff to appeal by tying it to his associated

memory that he had given this instruction immediately after his sentencing and because the

sentencing judge had said he had 10 days to appeal, and he insisted on this story repeatedly. But

the judge had actually said 14 days, as demonstrated by the transcript. Furthermore, the

magistrate judge found that DeWerff was credible.

         In his report, beyond finding that Webb did not actually instruct DeWerff to appeal, the

magistrate judge opined on two other issues. First, he rejected Webb’s argument based on Roe v.

Flores-Ortega, 528 U.S. 470 (2000)—i.e., that DeWerff was ineffective because he failed his

duty to consult with Webb about an appeal, a duty which arose even if Webb had not expressly

asked for any appeal—by finding that argument beyond the scope of the district court’s narrow

instruction and inapposite because Flores-Ortega applied to a defendant who had not waived any

of his appeal rights as Webb had done. The magistrate judge also noted that, to obtain equitable

tolling, Webb had to prove that despite his diligence “some extraordinary circumstance”

prevented his timely filing, but that Webb had shown neither diligence, given that “he knew in

August 2011, when he reviewed his docket sheet, that an appeal had not been filed, but he did

nothing about it until April 2012,” nor that “any extraordinary circumstance [] stood in his way

of making a timely claim in this case.” Based on all of this, the magistrate judge found the filing

untimely and recommended that the district court grant the motion to dismiss.



         1
          In August 2011, Webb had possession of his docket report and was concerned that certain entries revealed
his cooperation with the government. Because the docket was publicly available, he feared reprisal if that
cooperation were discovered. Webb contacted DeWerff and asked him to have those entries removed or redacted.
Webb testified that he could read that docket report and understood from it that no appeal had been filed, and that he
had not asked DeWerff about an appeal at that time or the absence of any appeal entry on that docket report.
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No. 14-5380, Webb v. United States


        In his objection to the magistrate judge’s report, Webb essentially conceded that he had

not really instructed DeWerff to appeal, and instead pressed the Flores-Ortega argument: that

DeWerff was obliged to consult with him anyway but had failed to do so. In rejecting this

argument, the district court explained that Flores-Ortega, 528 U.S. at 480, applies when there is

objective evidence that a reasonable defendant would want to appeal or subjective evidence that

the particular defendant demonstrated a desire to appeal. According to the court, however, Webb

could prove neither, given that he had obtained and agreed to a favorable plea agreement

containing an appeal waiver, and afterwards had spoken with DeWerff on at least three occasions

prior to the expiration of the limitations period without ever mentioning any appeal.

        The district court dismissed Webb’s § 2255 as untimely and denied any certificate of

appealability (COA). R. 45. When Webb moved for reconsideration, the court said:

        When a district court has denied a habeas corpus petition on procedural grounds
        without reaching the petitioner’s underlying constitutional claims, a certificate of
        appealability will issue only if the petitioner can show (1) that jurists of reason
        would find it debatable whether the petition states a valid claim of the denial of a
        constitutional right and (2) that jurists of reason would find it debatable whether
        the procedural ruling was correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
               In this case, [Webb’s] petition was clearly filed well beyond the expiration
        of the one year limitation period applicable to § 2255 habeas corpus actions.
        [Webb] failed to establish that a tolling of the limitation period would be
        appropriate in this instance. Therefore, reasonable jurists would not find the
        untimeliness of this action debatable.

R. 51 (4/2/14) (first emphasis added). The district court thus expressly avoided the merits.

        Webb applied to this court for a COA and a single judge denied it, holding that “jurists of

reason could not disagree . . . that Webb’s § 2255 motion is time barred”:

               First, the facts supporting Webb’s claims—i.e., the advice that his attorney
        gave him at the plea stage and the attorney’s failure to consult with him about an
        appeal—were indisputably known to Webb at the time that his conviction became
        final. Under the plain text of § 2255 and our precedent, whether Webb knew, or
        should have known, that those facts might support a legal claim is irrelevant.
              Second, Webb’s attorney’s failure to consult with him about an appeal in
        no way impeded the timely filing of a § 2255 motion. Thus, reasonable jurists

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No. 14-5380, Webb v. United States


        could not debate the district court’s determination that the one-year limitations
        period ran from the date that Webb’s conviction became final, and not from some
        later date under 28 U.S.C. § 2255(f)(2) or (4).
               Finally, reasonable jurists could not debate the district court’s refusal to
        apply equitable tolling. Webb has not shown that he pursued his rights diligently
        and that [an] extraordinary circumstance prevented him from filing a timely §
        2255 motion. Again, the attorney’s failure to consult with Webb about an appeal
        was no barrier to [Webb’s] timely filing under § 2255.

R. 52 (citations omitted; paragraph break inserted).

        But Webb petitioned for rehearing and a three-judge panel reversed that single-judge

decision and granted the COA in a succinct, two-paragraph order:

                Joe Edward Webb petitions for rehearing en banc of this court’s order …
        denying his application for a [COA]. The petition was initially referred to this
        panel, on which the original deciding judge does not sit. The petition was then
        circulated to all active members of the court, none of whom requested a vote on
        the suggestion for an en banc rehearing. Therefore, en banc rehearing is denied.
                However, the panel further reviewed the petition for rehearing and grants
        the petition to rehear the matter and grants Webb a [COA] on the issues of
        [1] whether Webb’s attorney failed to consult with him about the advantages and
        disadvantages of taking an appeal and [2] whether Webb is entitled either to
        ‘statutory tolling’ under 28 U.S.C. § 2255(f)(2) or (4) or to equitable tolling.

R. 53. The first thing that bears mention is that the first issue is not actually at issue here, given

that DeWerff frankly admitted (and the district court expressly found) that he did not consult

with Webb about any appeal. Moreover, the district court expressly chose to avoid any merits

aspect and instead dismissed the case solely on the procedural untimeliness.

                                                 II.

        Webb’s original story was that he had expressly told DeWerff to appeal, DeWerff

promised to do so, and Webb was unaware until way too late that DeWerff had not appealed.

But that story was not true; at least, the magistrate judge found that it was not true. Thus, Webb

now accuses DeWerff of the exact opposite: Webb now claims that he never instructed DeWerff

to file the appeal because DeWerff actually warned him that he could not appeal and prevented

him from appealing. See Webb’s Apt. Br. at 3 (“lawyer indicated [Webb] could not appeal”); at

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No. 14-5380, Webb v. United States


4 (Webb “was hamstrung by his lawyer’s misadvice”); at 13 (“DeWerff essentially told Webb he

could not appeal”); at 19 (DeWerff “created the false impression that Webb had no right to

appeal at all”); at 25 (“the upshot of DeWerff’s advice was simply: You cannot appeal”). So one

might ask, if this new story is true, why did Webb fabricate the prior express-instruction-and-

promise story? And given that this new story emerges as a result of district court’s rejecting the

first story as a fabrication, why would anyone believe this story either? The transcript not only

demonstrates that the sentencing judge clearly told Webb that he could appeal, but that Webb

clearly understood, believed, and remembered that offer, and made it (and his misremembered

10-day time limit) a central part of his express-instruction-and-promise story. So, to use the

magistrate judge’s phraseology, it appears “unbelievable” and “simply inconceivable” that Webb

thought he could not appeal.

        In any event, Webb’s basic theory or argument for tolling the § 2255 deadline is that: “he

should be allowed to raise his Flores-Ortega claim late because in order to recognize that claim

existed he had to overcome the ignorance that he wrongfully suffered due to the Flores-Ortega

violation itself [i.e., DeWerff’s “misadvice”]. To overcome that ignorance and recognize that

violation, he needed two things: (1) his file, so he could know and recall the precise facts of his

case; and (2) awareness that the FSA issue existed and was viable, including in the Sixth

Circuit.” Webb’s Apt. Reply Br. at 7. But Webb did not need his file to pursue this theory.

        Webb’s theory relies on two particular “facts”: (1) that DeWerff led him to believe that

he could not appeal and (2) that DeWerff did not consult with him about an appeal. These are

not facts from DeWerff’s file; Webb would have been fully aware of these two facts on January

21, 2011, the day that his 14 days for filing a direct appeal expired and the one-year AEDPA

limitation period began. It is highly unlikely that these “precise facts” would have been in

DeWerff’s file.

                                                6
No. 14-5380, Webb v. United States


        Webb’s second contention is that he needed to know he had a viable legal claim (i.e.,

“needed … awareness that the FSA issue existed and was viable … in the Sixth Circuit”). But a

petitioner’s ignorance of a legal claim does not toll the § 2255 deadline. See Ford v. Gonzalez,

683 F.3d 1230, 1235 (9th Cir. 2012) (“The ‘due diligence’ clock starts ticking when a person

knows or through diligence could discover the vital facts, regardless of when their legal

significance is actually discovered.” (emphasis added)); Owens v. Boyd, 235 F.3d 356, 359 (7th

Cir. 2000) (amended Jan. 22, 2001) (“Time begins when the prisoner knows (or through

diligence could discover) the important facts, not when the prisoner recognizes their legal

significance.”); Brooks v. McKee, 307 F. Supp. 2d 902, 905-06 (E.D. Mich. 2004)

(“Additionally, the AEDPA’s limitations period begins to run when the petitioner knows or

through due diligence could have discovered the important facts for the claim, not when the

petitioner recognizes the facts’ legal significance.”); Redmond v. Jackson, 295 F. Supp. 2d 767,

771 (E.D. Mich. 2003) (“Also, under § 2244(d)(1)(D), the time under the limitations period

begins to run [] when a petitioner knows, or through due diligence, could have discovered, the

important facts for his claims, not when the petitioner recognizes the legal significance of the

facts.”). Consequently, Webb’s core argument is both contrary to the pertinent facts of this case

and unsupported by the established law.

        Nonetheless, Webb relies on this argument to seek tolling under three possible bases: 28

U.S.C. § 2255(f)(4), 28 U.S.C. § 2255(f)(2), and/or common law equitable tolling.

        Under 28 U.S.C. § 2255(f)(4), “[t]he limitation period shall run from . . . the date on

which the facts supporting the claim or claims presented could have been discovered through the

exercise of due diligence.” Webb argues that, pursuant to this provision, the starting date for his

§ 2255 should be either (1) the date the Supreme Court granted certiorari in Dorsey v. United

States, 132 S. Ct. 2321 (2012) (clarifying that the FSA applied to defendants such as Webb,

                                                7
No. 14-5380, Webb v. United States


sentenced after its enactment even if they were convicted before), or (2) the date Webb got the

file from DeWerff. But the “new information” to be gleaned from Dorsey was merely that he

had a viable legal claim, which—as explained above—is not a basis for tolling. And the only

“new information” to be gleaned from DeWerff’s file was extraneous or irrelevant to the

pertinent facts supporting his Flores-Ortega claim. Webb cannot satisfy § 2255(f)(4).

        Webb relies on DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006), in which the sentencing

judge failed to tell defendant DiCenzi that he could appeal and, apparently, his defense counsel

didn’t tell him either, so nobody told him and—according to his claim—he was unaware until a

public defender told him some two years later. Here, the sentencing judge clearly told Webb

about his right to appeal and Webb clearly understood, believed, and remembered.

Consequently, in DiCenzi, we remanded DiCenzi’s claim for the district court to determine

whether he had acted with diligence to discover his right to appeal; here, the district court and

magistrate judge have already had a full hearing and determined that Webb did not act with the

necessary diligence. DiCenzi is inapposite.

        Webb’s second proposed basis is 28 U.S.C. § 2255(f)(2), which says “[t]he limitation

period shall run from ... the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the United States is removed, if

the movant was prevented from making a motion by such governmental action.” Webb contends

that the “governmental action” that prevented him from making his § 2255 motion on time was

DeWerff’s Flores-Ortega violation and relies on Waldron v. Jackson, 348 F. Supp. 2d 877, 884

(N. D. Ohio 2004), saying its “logic supports th[at] conclusion.” Webb’s Apt. Br. at 45.

        In Waldron, a § 2254 case, a court-appointed appellate counsel missed the appeal

deadline but did not tell defendant Waldron, who only discovered the error when the Ohio

appellate court dismissed his appeal as untimely some four months later. A public defender then

                                                8
No. 14-5380, Webb v. United States


sought to file a delayed appeal but the motion was denied; moved for reconsideration, which was

denied; and appealed both denials to the Ohio Supreme Court, which declined to hear the appeal.

Over three years passed while Waldron pursued that delayed appeal.            Following the Ohio

Supreme Court’s final ruling, Waldron filed his § 2254 and the government moved to dismiss it

as untimely because delayed appeals do not toll the AEDPA clock. But the district court held

that Waldron’s appellate counsel’s ineffectiveness was an impediment that prevented the timely

filing of his § 2254 because Waldron “could not have brought this habeas action until the claim

contained in the petition had first been presented to and exhausted in state court, including the

filing of a delayed appeal.” Waldron, 348 F. Supp. 2d at 884. Even if that analysis is proper, the

distinction is noteworthy: this is a § 2255, in which Webb did not have to first exhaust his claim,

so DeWerff’s ineffectiveness did not prevent Webb from filing the § 2255 earlier.

        Moreover, Waldron acknowledges that “Section 2244(d)(1)(B) requires a causal

relationship between the unconstitutional state action [i.e., ineffective assistance imputed to the

state] and [the petitioner’s] being prevented from filing the petition.” Id. at 583 (relying on

Winkfield v. Bagley, 66 F. App’x 578, 583 (6th Cir. 2003) (“[The petitioner] has not alleged that

[his attorney] erroneously informed him that he had no federal remedies. No connection has been

established between [the attorney]’s ineffective assistance and [the petitioner]’s ability to file a

federal habeas petition.”)); see also Miller v. Cason, 49 F. App’x 495, 497 (6th Cir. 2002)

(finding that even a court’s failure to advise a petitioner of his appellate rights at sentencing is

not a state-created impediment that prevented him from filing his federal habeas petition). But

Webb cannot show a causal relationship—such as in Waldron—that would connect DeWerff’s

ineffectiveness with his own failure to timely file his § 2255 motion, because there is none.

        Finally, Webb’s third basis is common law equitable tolling. “Equitable tolling allows

courts to review time-barred habeas petitions provided that a litigant’s failure to meet a legally-

                                                 9
No. 14-5380, Webb v. United States


mandated deadline unavoidably arose from circumstances beyond that litigant’s control.”

Keeling v. Warden, 673 F.3d 452, 462 (6th Cir. 2012) (quotation marks and citations omitted).

“[The] habeas petitioner must establish: (1) that he has diligently pursued his rights; and (2) that

some extraordinary circumstance stood in his way and prevented timely filing.” Id. (quotation

marks and citations omitted).

          As we have already established, Webb cannot show that he diligently pursued his rights

or that some “extraordinary circumstance” prevented his timely filing of his § 2255. Also, as we

clarified in Keeling: “pro se status and lack of knowledge of the law are not sufficient to

constitute an extraordinary circumstance and to excuse his late filing.” Id. at 464.

          The district court was correct. There was no reason to toll the running of the limitations

period.

                                                 III.

          For the foregoing reasons, we AFFIRM the judgment of the district court.




                                                 10
No. 14-5380, Webb v. United States


        COLE, Chief Judge, concurring in part and dissenting in part.

        I respectfully disagree with the majority to the extent it finds that Webb lacks a claim

under Roe v. Flores-Ortega, 528 U.S. 470 (2000). The question is not, as the majority writes,

whether Webb knew that he could appeal his sentence at all. Maj. Op. 6. It is whether a rational

defendant in Webb’s circumstances would have wanted to appeal the sentence. Flores-Ortega,

528 U.S. at 480. No rational defendant would have passed up the chance to reduce his sentence

by half under the Fair Sentencing Act (“FSA”). So, Webb’s counsel should have consulted with

him about an FSA-based appeal. See id. (“courts must take into account all the information

counsel knew or should have known,” including relevant statutory changes). Counsel’s failure to

do so constitutes a claim under Flores-Ortega.

        But I agree that Webb’s motion to vacate his sentence under 28 U.S.C. § 2255 was

untimely for the reasons discussed by the majority.        Webb’s strongest argument concerns

§ 2255(f)(4), under which the filing period runs from “the date on which the facts supporting the

claim . . . could have been discovered through the exercise of due diligence.” We have clarified

that § 2255(f)(4) is “directed at the discovery of new facts, not newly-discovered law.” Phillips

v. United States, 734 F.3d 573, 580 (6th Cir. 2013). What enabled Webb to bring his Flores-

Ortega claim was the knowledge that he was entitled to a reduced sentence under the FSA, that

is, awareness of the law governing his position. See Dorsey v. United States 132 S. Ct. 2321,

2331 (2012); Gilliam v. United States, 753 F. Supp. 2d 683, 691 (W.D. Mich. 2010). Webb

possessed the facts supporting that claim, e.g., the drug quantities for which he was convicted, as

early as sentencing. Thus, § 2255(f)(4) does not apply to him.




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