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United States v. Kessler

United States District Court, D. Maryland

July 22, 2016

UNITED STATES OF AMERICA
v.
WINDSOR WERNER KESSLER, III Criminal No. MJG-11-0434

          MEMORANDUM AND ORDER

          Marvin J. Garbis, United States District Judge.

         The 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.

         On 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.

         At the time of sentencing, Judge Quarles advised Petitioner of the timing of any appeal.

THE COURT: You have 14 days from today's date[1] 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.

Tr. 15:2-5, Jan. 17, 2012, ECF No. 38-2.

         The Judgment [ECF No. 23] was docketed the next day, January 18, 2012. Petitioner did not appeal from the sentence.

         The 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, [2] 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.
As 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).

         Petitioner 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 ...


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