United States District Court, N.D. Indiana, Fort Wayne Division
CORNELIUS J. BENSON
UNITED STATES OF AMERICA
OPINION AND ORDER
WILLIAM C. LEE, UNITED STATES DISTRICT COURT
Benson (“Benson”) has filed a Motion to Vacate
pursuant to 28 U.S.C. §2255 [DE 92] as well as an
Amended Petition [DE 94]. For the following reasons, both
Benson's Motion and his Amended Petition will be DENIED.
August 22, 2005, Benson was indicted on two counts: Count 1,
armed bank robbery in violation of 18 U.S.C. §2113(a)
and (d); and Count 2, using a firearm during and in relation
to a crime of violence in violation of 18 U.S.C.
§924(c). After a jury trial, Benson was convicted of the
armed bank robbery count, but not the §924(c) charge.
The trial strategy invoked by Benson's counsel, and to
which Benson agreed on the record, was to concede
Benson's participation in the armed bank robbery, but to
challenge the Government's case as to Benson's use of
Benson was deemed a career offender due to two prior armed
bank robbery convictions and the undersigned sentenced Benson
to 285 months of imprisonment and 3 years of supervised
release. Benson appealed his conviction. On appeal,
Benson's appointed counsel sought to withdraw and filed a
brief pursuant to Anders v. California, 386 U.S. 738
(1967). Subsequently, in United States v. Benson,
219 Fed.Appx. 556 (7th Cir. 2007), the Seventh
Circuit Court of Appeals upheld his conviction and dismissed
24, 2019, twelve years post-appeal, Benson filed the present
petition pursuant to 28 U.S.C. §2255 alleging vagueness
regarding his supervised release conditions and requesting
re-sentencing. On July 11, 2019, Benson filed an amended
petition adding claims of ineffective assistance of counsel
with respect to the jury instructions and the jury question
at trial. The Government moves to dismiss Benson's §
2255 petition as untimely.
§ 2255 petition must be filed within one year of four
possible dates: (1) the date the judgment of conviction
becomes final; (2) if the movant was prevented from making a
motion by unlawful government action, the date the obstacle
is removed; (3) if the Supreme Court recognizes a new right,
the date on which the right is recognized and made
retroactively applicable to cases on collateral review; or
(4) the date that the facts that support the claim could have
been discovered through the exercise of due diligence. 28
U.S.C. § 2255(f). Section 2255's “statute of
limitations defense is not jurisdictional” and can be
equitably tolled. Holland v. Florida, 560 U.S. 631,
645, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (alteration
and quotation marks omitted); see also Estremera v.
United States, 724 F.3d 773, 775 (7th Cir.2013)
(applying Holland to a § 2255 petition). To
qualify for equitable tolling then, a petitioner must show:
“(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.” Holland, 560
U.S. at 649, 130 S.Ct. 2549 (quotation marks omitted).
Equitable tolling is “rare” and “reserved
for extraordinary circumstances far beyond the litigant's
control that prevented timely filing.” Socha v.
Boughton, 763 F.3d 674, 684 (7th Cir.2014) (quotation
clearly filed outside the one-year limitation period, Benson
maintains the deadline for his §2255 petition should be
equitably tolled because he just recently learned of a case
involving supervised release conditions, United States v.
Ray, 831 F.3d 431 (7th Cir. 2016). However,
even if the Court accepted the proposition, (which the Court
does not) that Benson's lack of diligence in researching
his conditions of release until now warranted equitable
tolling, Ray does nothing to aid him in his quest to
have the supervised release conditions declared vague.
Ray did not hold that any specific condition is
vague. Rather, it simply held that supervised release
conditions should not be amended while an appeal is pending.
Id. at 439. Moreover, Benson has provided no
explanation whatsoever as to why it took him until 2019 to
“become aware” of this case.
said, the Government acknowledges that Benson can file a
motion pursuant to 18 U.S.C. §3583(e)(2) to have his
supervised release conditions reviewed. (Gov't Response,
at 7, fn. 1). Indeed, §3582(e)(2) authorizes the Court
to “modify, reduce, or enlarge the conditions of
supervised release, at any time prior to the expiration or
termination of the term of supervised release.” Thus,
should Benson believe that there is something improper
regarding his conditions of supervised release, he may
present that to the Court.
Benson's allegations of ineffective assistance of counsel
in his Amended Petition, he is clearly outside the §2255
limitations period to present these claims. In the Opinion
relating to his appeal in 2007, the Seventh Circuit
specifically advised Benson that his “ineffective
assistance claim is better suited to collateral attack, at
which time a full record may be developed.”
Benson, 219 Fed.Appx. at 559-60. Despite this
advice, Benson opted not to file a collateral attack within
the one year limitations period. Additionally, he has offered
no explanation in his current petition as to why he could not
present his ineffective claims earlier nor has he
demonstrated any grounds to equitably toll the limitations
period. Accordingly, Benson's petition must be dismissed
reasons discussed, Benson's §2255 motion [DE 92] and
his Amended Petition [DE 94] will be DENIED
and DISMISSED WITH PREJUDICE. The Court will
CERTIFY any appeal from this action would
not be taken in good faith and would be totally frivolous.
Benson having failed to make a substantial showing of the
denial of a constitutional right, a certificate of