                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-22-2006

USA v. Crute
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3107




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Crute" (2006). 2006 Decisions. Paper 1556.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1556


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-3107


                           UNITED STATES OF AMERICA

                                             v.

                                   ROBERT CRUTE,

                                                             Appellant


                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             District Court No. 96-cr-00083-1
                  District Judge: The Honorable James F. McClure, Jr.


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 27, 2006

                    Before: RENDELL and SMITH, Circuit Judges,
                              IRENAS, District Judge*

                                (Filed: February 22, 2006)



                                        OPINION




  *
    The Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
SMITH, Circuit Judge.

       Robert Crute appeals from an order by the United States District Court for the

Middle District of Pennsylvania denying his third § 2255 motion as time-barred under the

one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). See 28 U.S.C. § 2255. The District Court had jurisdiction

under 28 U.S.C. § 2244(b)(3). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).

We exercise “plenary review over statute of limitations issues.” Nara v. Frank, 264 F.3d

310, 314 (3d Cir. 2001).

       Crute, while imprisoned for another federal offense, was convicted of assaulting a

corrections officer with a dangerous weapon in violation of 18 U.S.C. § 111, and

sentenced on September 12, 1996 to an additional ninety-six months’ imprisonment. The

conviction was based on the fact that Crute had thrown a liquid on a female employee in

the prison’s kitchen, causing her face to burn and to blister. Crute did not appeal his

conviction.

       The District Court dismissed Crute’s initial § 2255 motion as untimely in October

of 2001. On January 7, 2002, pursuant to a request under the Freedom of Information

Act, Crute received a report of the chemical analysis of the substance that was thrown on

the prison employee. The report indicated that the laboratory sample of the liquid thrown

on the prison employee did not contain any corrosive or chemical agents. More than nine

months later, on September 19, 2002, Crute filed a second § 2255 motion. On October

15, 2002, the District Court denied the motion as an unauthorized second or successive

                                             2
application under 28 U.S.C. § 2244. Crute filed an appeal to this Court. We affirmed the

dismissal of the second § 2255 motion in April of 2003.

       Thereafter, on September 25, 2003, Crute filed a third § 2255 motion in the

District Court for the Southern District of New York. After Crute’s third petition was

transferred to this Court, we authorized the filing of that petition under 18 U.S.C. §

2244(b)(2)(B). The motion was docketed in the District Court on June 21, 2004. Two

days later, the District Judge issued a sua sponte order dismissing the motion as time-

barred. The District Court recognized that we had authorized the filing of this successive

§ 2255 petition, but pointed out that we had not addressed the timeliness of the motion.

The Court assumed that Crute learned of this new evidence regarding the laboratory

analysis at the latest on January 7, 2002, when he received the FOIA response. As a

result, it concluded that the one-year limitations period expired on January 7, 2003,

almost nine months before Crute filed his third § 2255 motion. Crute filed a motion to

alter or amend the judgment on July 8, 2004, arguing that the District Court used the

wrong date in its calculations, and that his motion was brought under 28 U.S.C. § 2241.

Because neither argument warranted vacating the dismissal, the District Court denied the

motion to alter and amend on July 14, 2004.

       This timely appeal followed. We granted a certificate of appealability on

December 16, 2004, on the following issues:

       (1) whether the District Court erred in dismissing Crute’s June 2004 § 2255
       motion as untimely without providing Crute notice and an opportunity to
       respond; (2) whether Crute could present grounds for equitable tolling; (3)

                                              3
       whether actual innocence is a ground for equitable tolling; and (4) whether
       the District Court should have transferred rather than dismissed Crute’s
       September 2002 § 2255 motion.

       After granting Crute a certificate of appealability, we determined, sitting en banc,

that district courts may sua sponte raise AEDPA’s one-year statute of limitations,

provided that the petitioner is provided with notice and an opportunity to respond. See

United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc). We agree with

Crute that he was not formally notified before the District Court issued its order.

Nevertheless he had an opportunity to respond to the statute of limitations issue in his

motion seeking to alter or amend the judgment. For that reason, we find no error

warranting remand in the District Court’s sua sponte dismissal based on the one-year

period of limitations.

       Crute does not dispute in this appeal that his third § 2255 motion was time-barred.

He submits, however, that the one-year limitations period should have been equitably

tolled because he was misled by the prosecutor’s failure to provide the chemical analysis

of the substance. By withholding this document, Crute argues that the prosecution

prevented him, in an extraordinary way, from asserting his actual innocence.

       Equitable tolling is warranted “if (1) the defendant has actively misled the

plaintiff, (2) the plaintiff has in some extraordinary way been prevented from asserting his

rights, or (3) the plaintiff has timely asserted his rights mistakenly in the wrong forum.”

Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (internal quotation marks omitted)

(quoting Jones v. Morton, 195 f.3d 153, 159 (3d Cir. 1999). Although the first and

                                              4
second of these grounds may explain why the District Court assumed that the one-year

period of limitations started to run on January 7, 2002, there is no basis for equitable

tolling of the limitations period once Crute learned of the laboratory result. At that point

in time, Crute was aware that he had to move with some dispatch in light of the fact that

his first § 2255 motion had been dismissed as untimely. Moreover, the dismissal of his

second § 2255 apprised him of the need to seek authorization from the appropriate court

of appeals before he could proceed with another § 2255 motion. Although Crute had a

little more than two months to seek the requisite authorization before the one-year

statutory period expired, Crute waited until nine months after the one-year limitations

period expired to even apply for permission to file his third § 2255 motion. Because

Crute failed to pursue his rights diligently, there is no basis for equitably tolling the one-

year statute of limitations. See Pace v. Diguglielmo, 125 S.Ct. 1807, 1814 (2005)

(observing that litigant seeking to benefit from equitable tolling bears the burden of

demonstrating that he pursued his rights diligently).

       Crute submits that the laboratory analysis report establishes his actual innocence of

the offense of assaulting a federal employee in violation of 18 U.S.C. § 111, and that his

innocence merits equitable tolling. Section 111 of the Federal Crimes Code makes it

unlawful to assault a federal employee and it prescribes an enhanced penalty if the assault

either was committed by using a deadly or dangerous weapon, or resulted in the infliction

of bodily injury. There is nothing in the statute, however, requiring proof that the assault

was effected by the use of a caustic or corrosive agent. Thus, the fact that the laboratory

                                               5
analysis failed to reveal the presence of a caustic or corrosive agent does not absolve

Crute of violating § 111. For that reason, we need not determine whether an individual’s

actual innocence is a basis for equitable tolling.

         Because we are reviewing the dismissal of Crute’s third § 2255 motion, we lack

jurisdiction to consider whether the District Court erred by dismissing Crute’s second

unauthorized § 2255 motion, instead of transferring it to this Court. To the extent that

Crute is arguing that equitable tolling is warranted because he timely asserted his rights

by filing his second § 2255 motion in the wrong forum, we reject that argument. We have

iterated on several occasions that the doctrine of equitable tolling has a limited

application and that “the petitioner must show that he or she exercised reasonable

diligence in investigating and bringing the claims. Mere excusable neglect is not

sufficient.” Miller v. New Jersey Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998)

(internal citations, quotation marks, and brackets omitted). Here, despite the fact that his

second § 2255 motion was dismissed as unauthorized, Crute did nothing to seek the

requisite permission from a court of appeals. Even after we affirmed the dismissal of the

second § 2255 motion, Crute waited another five months before filing his third § 2255

motion, again in the improper forum of a district court. Crute’s lack of diligence

precludes granting his request for equitable tolling on the basis that he filed in the wrong

forum.

         We will affirm the judgment of the District Court.



                                              6
