United States District Court, D. Maryland
Windsor Warner Kessler, Petitioner, Pro Se.
MEMORANDUM AND ORDER
J. GARBIS, District Judge.
Court has before it Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence [ECF No. 25] and the materials
submitted relating thereto. As discussed herein, the Court
finds that no hearing is needed to resolve the motion.
October 14, 2011, Windsor Werner Kessler, III
("Petitioner") was convicted on a plea of guilty to
possession of child pornography in violation of 18 U.S.C. §
2252(a)(4)(B). On January 17, 2012, Judge Quarles of this
Court imposed the sentence of 120 months of incarceration.
The sentence was imposed pursuant to a plea agreement under
Rule 11(c)(1)(C), Federal Rules of Criminal Procedure,
calling for a sentence in the range of 63 to 120 months.
time of sentencing, Judge Quarles advised Petitioner of the
timing of any appeal.
THE COURT: You have 14 days from today's
date to file an appeal. If you cannot
afford to pay a filing fee, you can appeal without a fee. Do
you understand that?
THE DEFENDANT: Yes, sir.
15:2-5, Jan. 17, 2012, ECF No. 38-2.
Judgment [ECF No. 23] was docketed the next day, January 18,
2012. Petitioner did not appeal from the sentence.
instant motion was filed on June 11, 2014. On June 23, 2014,
Judge Quarles, observing that the motion appeared not to have
been timely filed,  issued an Order [ECF No. 26] stating:
A petitioner is entitled to equitable tolling if he
demonstrates: 1) that he has been pursuing his rights
diligently, and 2) an extraordinary circumstance stood in his
way and prevented timely filing. See [ Holland v.
Florida, 560 U.S. 631, 649 (2010)] (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner is
directed to address why the Motion is timely filed or
principles of equitable tolling should apply.
stated in United States v. Prescott, 221 F.3d 686,
688 (4th Cir. 2000):
§ 2255's limitation period is subject to equitable
modifications such as tolling.... Typically... circumstances
[warranting equitable tolling are] external to the
party's own conduct, thus making it unconscionable to
enforce the limitation period against the party.
(internal quotations omitted).
responded to the aforesaid order, stating that his trial
attorney "having [led] his client to believe that he was
going to file his appeal to appellate court, but instead
defense counsel dropped the ball and deprived Mr. Kessler of
his rights to be heard in a meaningful matter." Resp. 2,
ECF No. 28. The response did not, however, state when ...