sentencing hearing. See Fed.R.App.P. 4(b)(1)(A)(i). That means that the petitioner's conviction
became final as of April 4, 2000. Accordingly, the one year statute of limitations for the filing of
Paschal’s habeas petition expired on April 4, 2001.

Obviously mindful of this deadline, Paschal filed both his handwritten and typewritten
motions for an extension of time in which to file his Section 2255 petition. While the Seventh
Circuit has not yet addressed the issue, the weight of the authority around the country is that a
district court does not have the authority to extend the deadline for filing a Section 2255 petition
except for those instances which Congress expressly authorized. See Reed y. United States, 2001
WL 700811, at *2 (6th Cir. June 15, 2001) (unpublished opinion); Washington v. United States,
221 F.3d 1354, 2000 WL 985885, at *1-2 (10th Cir. July 18, 2000) (unpublished opinion);
United States v. Leon, 203 F.3d 162, 163-64 (2d Cir, 2000); United States v. Duffs, 174 F.3d
333, 337-38 (3d Cir. 1999); United States v. Ailsworth, 1999 WL 1021073, at *2 (D. Kan. Sep.
29, 1999); In re Application of Wattanasiri, 982 F. Supp. 955, 957-58 (S.D.N.Y. 1997). We
agree with these courts and hold that we do not have jurisdiction to entertain Paschal’s request
for an extension of time in which to file his Section 2255 petition. Therefore, the petitioner’s
motion for an extension of time to file his Section 2255 petition is denied.

However, that does not end the mquiry, While granting a motion for an extension of time
is outside our power, the Seventh Circuit has stated in dicta that Section 2255's “period of
limitation is not jurisdictional but is instead a procedural statute of limitations subject to
equitable tolling.” United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (citing Taviant

v. Chrans, 189 F.3d 597 (7th Cir. 1999)). This means that we can still consider Paschal’s late

Section 2255 petition if he satisfies the Seventh Circuit’s stringent requirements for equitable



the connection to interstate commerce, the district court is not deprived of jurisdiction to hear the
case.” Jd. (quoting Martin, 147 F.3d at 532).

This analysis is fatal to Paschal’s “jurisdictional” argument. As in Hugi, Paschal has
asserted that his counsel was ineffective for entering into an agreement stipulating to the
interstate commerce clement of the crime (in Hugi, the stipulation was to the use of the interstate
wires and, in this case, the stipulation involved FDIC insurance). However, the Seventh Circuil’s
holding in /fugi makes it clear that the interstate commerce clement does not, in fact, confer
subject matter jurisdiction on this Court. Rather, 18 U.S.C. § 3231 performs that task. Proof that
the bank Paschal robbed was FDIC insured is simply one of a number of elements that must be
either proved by the government at trial or agreed to by the parties in a plea bargain.

Once it becomes clear that proof of FDIC insurance does not implicate our subject matter
jurisdiction, the remainder of Paschal’s Section 2255 petition begins to fall apart. The Seventh
Circuit has stated that “‘a plea of guilty constitutes waiver of non-jurisdictional defects occurring
prior to the plea.” United States v. Adams, 125 F.3d 586, 588 (7th Cir. 1997), Therefore,
Paschal can challenge his sentence only with respect to the validity of his plea or the jurisdiction
of the this Court. As we have determined above, Paschal’s FDIC insurance argument does not
truly constitute a challenge to our subject matter jurisdiction in this casc. Further, though Paschal
docs not mount an explicit aitack on the validity of his plea, any such challenge would be
frivolous. We specifically determined during our Rule 11 plea colloquy with Paschal that he was
competent to enter the plea, that he had assistance of counsel, and that he understood his rights
and the nature of the charges against him. We also found that the plea was knowing and

voluntary. Therefore, since the written plea agreement contamed an explicit clause “waiving all



constitute the kind of extraordinary circumstances that justify equitable tolling... .” Td.

In this case, Paschal’s primary argument in support of equitable tolling is that he could
not file his petition in time because he had been sent to California on a state court writ and he
was not permitted to take his federal habeas materials with him. This excusc cannot rise to the
level of an extraordinary circumstance justifying equitable tolling. Not only does this excuse
violate the Seventh Circuit’s holding in Montenegro, but public policy and congressional intent
also militate against permitting equitable tolling here. The transfer of prisoners between and
within this country’s penal systems is an all too common occurrence. Couple this fact with
Congress’ unambiguous statement that habeas petitions must be filed within one year of a
conviction becoming final (cxcept for the four statutory exceptions), and it becomes vividly clear
that the inconvenience associated with a prisoner’s transfer to another jail is not so extraordinary
as to warrant the tolling of the one year statute of limitations. Accordingly, we find that
Paschal’s untimely Section 2255 petition is not subject to equitable tolling. The government's
motion to dismiss Counts I through ILI of the petition is granted. Those claims are hereby
dismissed.

That having been said, however, we are not yet finished with this case. In Count [V of his
petition, Paschal has essentially challenged the “subject matter jurisdiction” of this Court to
consider his plea agreement and senlence him under it. Specifically, he has argued that we lack
jurisdiction because his trial counsel inappropriately entered into a stipulation with the
government which stated that the bank he robbed was insured by the Federal Deposit Insurance

Corporation (“FDIC”). Robbing a bank insured by the FDIC is one of the interstate commerce

elements that must be established before this Court can exert “jurisdiction” over the case. See 18



tolling in habeas cases.

Equitable tolling “excuses a[n] [un]timely filing when the plaintiff could not, despite the
exercise of reasonable diligence, have discovered all the information he needcd in order to be
able to file his claim on time.” Montenegro v. United States, 248 F.3d 585, 594 (7th Cir. 2001),
overruled on other grounds by Ashley v, United States, 266 F.3d 671 (7th Cir. 2001). Equitable
tolling “is granted sparingly” and must be based on “extraordinary circumstances." fd. We
should note that the Seventh Circuit has declined to rule on the extent to which equitable tolling
is applicable to Section 2255 petitions “given the express tolling provisions incorporated in the
statute.” Jd. Nonetheless, this determination is unnecessary for purposes of Paschal’s petition
because he clearly docs not mect the standards for equitable tolling.

The factual scenario presented in Montenegro illustrates why equitable tolling is
unavailable in this case. In that case, the petitioner filed a Section 2255 motion after the one ycar
statute of limitations had expired. 248 F.3d at 594. Montenegro argued equitable tolling was
appropriate in his case because he had been unaware that his attorney had neglected to file a
timely appeal. Jd. Among the excuses the petitioner used to convince the court that equitable
tolling should apply were: he never got a response from his attorney requesting information about
his appeal; he was unable to understand the docket sheet he received because of a language
barrier; he was never consulted on the possibility of an appeal; and he had limited education and
a lack of knowledge of the U.S. legal system. /d. Additionally, and perhaps most relevant to
Paschal’s request for equitable tolling, Montenegro also argued that the statute should be tolled
because he had been transferred from onc prison to another. 7d. In assessing all of these factors,

including the prison transfer argument, the Seventh Circuit determined that “[t]hese do no



Section 2255 petition, after he pled guilty, in which he claimed that his attorney had been
ineffective for failing to challenge the “jurisdictional” element of use of the interstate wires. In
response to this argument, the court analyzed the nature of subject matter jurisdiction in criminal
cases, “Lawyers and judges somctimes refer to the interstate commerce elcment that appears in
many federal crimes as the ‘jurisdictional element,’ but this is a colloquialism — or perhaps a
demonstration that the word ‘jurisdiction’ has so many different uscs that confusion ensues.” Zd.
at 381 (citing Kanar v. United States, 118 F.3d 527, 529-30 (7th Cir, 1997)). “[TJhe nexus with
interstate commerce, which courts frequently call the ‘jurisdictional element,’ is simply one of
the essential elements of [the offense], Although courts frequently call it the ‘jurisdictional
element’ of the statute, it is ‘jurisdictional’ only in the shorthand sense that without that nexus,
there can be no federal crime . . . . It is not jurisdictional in the sense that it affects a court’s
subject matter jurisdiction, ....” Jd, Thus, while “[a] link to interstate commerce may be
essential to Congress’ substantive authority, see United States v. Lopez, 514 U.S. 549, 115 S.Ct.
1624 (1995), .. . the existence of regulatory power differs from the subject-matter jurisdiction of
the courts.” Jd. at 380-81. The “subject matter jurisdiction in every federal criminal prosccution
comes from 18 U.S.C. § 3231, and there can be no doubt that Article IIT permits Congress to
assign federal criminal prosccutions to federal courts. That’s the beginning and the end of the
‘jurisdictional’ inquiry.” /d. at 381 (quoting United States v. Martin, 147 F.3d 529 (7th Cir.
1998)). And “once a defendant pleads guilty m a court which has jurisdiction of the subject
matter and of the defendant, as did the court in the instant case, the court’s judgment cannot be
assailed on grounds that the government has not met its burden of proving ‘so-called

jurisdictional facts.”” /d. (internal quotations omitted). “Even if the government fails to establish



MW

\J inate Order Poms: ~-

United States District Court, Northern District of Minois

Oy, ‘Name of Assigned Judge Wayne R. Andersen Sitting Judge if Other
or Mugistrate Judge * than Assigned Judge
fa NUMBER 1C 4959 DATE 4/29/2003
CASE Mottio Paschal vs. United States of America
TITLE
[In the following box (a) indicate the party filing the motion, e.u., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: af the motion being presented.]
DOCKET ENTRY:
(1) Qo Filed motion of [ use listing in “Motion” box above.}
(2) im} Brief in support of motion due
(3) Oo Answer bricf lo motion duc . Reply to answer bricf due.
(4) oO Ruling/Hearing on set for at
(5) im Status hearing[held/continued to] (set for/re-set for] on set for at
(6) qa Pretrial conference[held/continued to] [set for/re-set for] on set for at .
{7) im Trial[set for/re-set forjon at _-
(8) a (Bench/Jury trial] [Hearing] held/continued to at
o

(9 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

QOFRCP4(m) Local Rule 41.1 OFRCP41(a)(1) OC FRCPAI(a)(2).

qo) «of [Other docket entry} Enter MEMORANDUM, OPINION AND ORDER: For the following
reasons, the petitioner’s motion for an extension of time to file his petition to vacate, set-aside or
correct his sentence pursuant to 28 U.S.C. Section 2255 is [2-1] denied. Accordingly, the
government’s motion to dismiss Counts I through ITI of the petition is [4-1] granted. Count IV of
the Section 2255 petition is denied based on the principles of waiver. This case is terminated. This
is a final and appealable order.

(il)

No notices required, advised in open court,

[For further detail see order attached to the original minute order, ]

Document
Number

0

No notices required bor of wo

Notives mailed by judge's staff. AY 0

Notified counsel by telephone

Y | Docketing to mail notices

vo | Mail AQ 450 form.

Kuno PUNISH Sn

Copy to judgermagistrate judge. ui

HpsE HY te seed asic
courtroam
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initials &- nl
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central Clerk's Ottice asling dopuy nivale

4



appellate issues thal might have been available if he had exercised his right to trial,” any
constitutional claims remaining in Count TV of the Section 2255 petition are hereby waived.
(Plea Agreement at 711.) See United States v. Wooley, 123 F.3d 627, 631 (7th Cir. 1997)
(upholding valid appeal waivers and dismissing appeals brought by defendants bound by such
waivers).
CONCLUSION

For the following reasons, the petitioncr’s motion for an extension of time to file his
petition to vacate, set-aside or correct his sentence pursuant to 28 U.S.C. § 2255 is denicd.
Accordingly, the govermment’s motion to dismiss Counts I through TH of the of petition is
granted. Count TV of the Scction 2255 petition is denied based on the principles of waiver. This

case is terminated. This is a final and appealable order.

Li)...
Wayne R. Andersen

United States District Judge

It is so ordered,

Dated: ( prt A 4, 4002.

10



U.S.C, § 2113(a). In other words, he argues that if the bank had not been insured by the FDIC,
then the jurisdictional nexus would have been missing, thus concluding that there was no federal
crime. In response to this argument, the government asserts in its motion to dismiss that, like the
other three counts in the Section 2255 petition, this claim is also ptocedurally defaulted because
it was not filed within the one year statute of limitations.

Assuming for the moment that the fact of FDIC insurance is indeed necessary for us to
have subject matter jurisdiction over this case, then Paschal could assert his challenge to our
jurisdiction in his Section 2255 petition despite his guilty plea and the one year statute of
limitations. As Paschal correctly notes in his petition, the Seventh Circuit has ruled that “there is
no barrier to a court’s examination, on a § 2255 motion, of the propriety of its original exercise
of jurisdiction. Rather a court is under an affirmative obligation to so inquire.” Kelly v. United
States, 29 F.3d 1107, 1113 (7th Cir, 1994). A jurisdictional challenge can be raised at any point
during the proceedings. On this same point, the court also stated that “[b]ccause a jurisdictional
defect cannot be procedurally defaulted in the first place, it is therefore a non sequitur to suggest
that a procedural default cannot be overcome because the defendant has not madc an adequate

showing of ‘cause.””" Jd. Thercfore, because Paschal has framed his FDIC insurance argument as
an attack on our jurisdiction, we will address the substance of thal argument and not simply
dismiss it as barred by the statute of limitations.

However, having us address the merits of this “jurisdictional” argument does not mean

Paschal should be encouraged, The Seventh Circuit has addressed this same issue and

determined that what Paschal has labeled an issue of “subject matter jurisdiction” is, in fact, a

misnomer. In Hugi v. United States, 164 F.3d 378, 380-81 (7th Cir. 1999), the petitioner filed a



DISCUSSION

Collateral relief under 28 U.S.C. § 2255, the federal version of habeas corpus, is available
only in limited circumstances. The statute provides in relevant part:

A prisoner in custody under sentence of a court established by Act of Congress

claiming the right to be released upon the ground that the sentence was imposed in

violation of the Constitution or laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess of

the maximum authorized by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set aside or correct the

sentence.

28 U.S.C. § 2255, Such relief is therefore limited to “an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which inherently results in a complete
miscarriage of justice.” Bischel v. United States, 32 F.3d 259, 263 (7th Cir, 1994) (quoting
Borre v. United States, 940 F.2d 215, 217 (7th Cir, 1991)).

In order for a petitioncr to obtain Section 2255 collateral relief, he must file his petition
within one year from the latest of four specified events: (1) “the date on which the judgment of
conviction becomes final;” (2) “the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or the laws of the United States is removed,
if movant was prevented from making a motion by such governmental action;” (3) “the date on
which the right asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases on collateral
review:” or (4) “the date on which the facts supporting the claim or claims presented could have
been discovered through the exercisc of due diligence.” 28 U.S.C. § 2255, Although the statute

itself does not define the term “final,” for purposes of this casc, we feel confident that the

petitioner's conviction was finalized after the ten day period to appeal expired following his


On March 9, 2001, almost one year after he was sentenced, this Court received a
handwritten letter from Paschal in which he requested an extension of time to file his petition for
habeas corpus relicf pursuant to 28 U.S.C. § 2255. In this letter, Paschal advised us that he was
“currently on writ in state court and cannot finish proccedings until I am returned to federal
custody.” The Clerk of the Court docketed Paschal’s letter as a motion for “an extension of time
to file his 2255 habeas corpus case.”

On May 31, 2001, over onc year afler he was sentenced, Paschal filed a typewritten
“motion for leave for extension of time to file 28 U.S.C. § 2255 motion to vacate, set-aside or
vacate [sic] sentence.” In this motion, Paschal again stated that, on November 8, 2000, he was
summoned to state court on a writ and that he had been unable “to obtain the materials needed to
complete (he motion that was started prior to being called out on the writ.”

On June 27, 2001, Paschal finally filed his Section 2255 habeas corpus petition. In that
petition, he raised the following four claims: 1) the Court and the government violated his written
plea agreement when he was sentenced to a term of imprisonment in excess of that stated in the
agreement; 2) obstruction of justice; 3) ineffective assistance of trial counsel; and 4) the Court
lacked subject matter jurisdiction to sentence the petitioner on the charge of bank robbery. A fier
the Section 2255 petition was filed, the government filed the instant motion to dismiss arguing

that the petition was not filed within the one year statute of limitations contained in Section 2255

of the Antitcrrorism and Effective Death Penalty Act of 1996.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
MOTTIO PASCHAL, )
)
Petitioner, )
) DOCKETED
v. ) No. 01 C 4959
) MAY 0 1 2003
UNITED STATES OF AMERICA, ) Wayne R. Andersen
) District Judge
Respondent. )

MEMORANDUM, OPINION AND ORDER

This case is before the Court on petitioner Mottio Paschal’s motion for an cxtension of
time to file his petition to vacate, set-aside or correct his sentence pursuant to 28 U.S.C. § 2255
and the United States’ motion to dismiss Paschal’s habeas petition. For thc following reasons,
the motion for an extension of time is denied and the petitioncr’s Section 2255 petition is denied,

BACKGROUND

On December 2, 1998, the petitioner, Mottio Paschal, and his brother, Leo Paschal, were
arrested by officers of the Niles Police Department following an alleged bank robbery and
subsequent vehicular pursuit. On December 3, 1998, a one-count criminal complaint was filed in
this Court charging the petitioner and Leo Paschal with bank robbery in violation of 18 U.S.C. §
2113(a). On February 11, 1999, a one-count indictment was filed. On February 19, 1999, the
defendant was arraigned before Magistrate Judge Arlander Keys and he entered a plea of not
guilty to the charges presented in the indictment. On July 28, 1999, Paschal pled guilty, pursuant
to a written plea agreement, to one count of bank robbery in violation of 18 U.S.C. § 2113(a).

We sentenced Paschal to 120 months imprisonment on March 20, 2000. The petitioner chose not

to pursuc a direct appeal of his sentence.