WisBar News: Pilot wins first fight to appeal conviction for transporting drugs to Wisconsin:

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    A panel for the Seventh Circuit Court of Appeals recently reversed the district court’s conclusion that a federal prisoner’s direct appeal is barred by a statute of limitations.

    Joe Forward

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    Pilot wins first fight to appeal conviction for 
transporting pot to Wisconsin Sept. 19, 2011 – After blaming his attorney, the pilot convicted of flying a propeller plane packed with pot from California to Wisconsin may get a chance at appeal.

    In 2009, Trevor Ryan was sentenced to serve about five-and-a-half years in federal prison for possessing 150 pounds of marijuana with intent to distribute. The sentence became final when neither he, nor his lawyer, filed an appeal within 10 days of sentencing.

    A year and two months later, Ryan filed a motion to vacate the sentence under 28 U.S.C. section 2255, arguing that he instructed his lawyer to file an appeal but the lawyer never did. The government argued that Ryan’s motion was barred by section 2255’s statute of limitations.

    A one-year statute of limitations period applies to bar prisoner motions. If a prisoner asserts a claim based on newly discovered facts, the limitations period begins to run on the date the facts supporting the claim could have been discovered through due diligence.

    Ryan argued that even a reasonably diligent prisoner would not have discovered the attorney failed to file an appeal within two months of the sentencing date. He also argued that the government impeded his ability to file a motion on his own.

    The U.S. District Court for the Western District of Wisconsin denied Ryan’s motion as untimely, concluding that Ryan could have filed the motion within the nine months following his discovery that no appeal was ever filed on his behalf. 

    But in U.S. v. Ryan, No. 10-2564 (Sept. 16, 2011), a Seventh Circuit Court of Appeals panel reversed, ruling that if Ryan’s allegations are true, the section 2255 motion is not barred by the statute of limitations period and a direct appeal is still permitted

    “[T]he gaps the government identifies in Ryan’s allegations – precisely when Ryan asked his lawyer to appeal, who else might have witnessed his request, which officials denied Ryan access to a law library – show only that further proceedings would be helpful, not that Ryan has conclusively pleaded himself out of court,” Wrote Judge William Bauer.

    The appeals panel refused to establish a cutoff under section 2255 in determining the amount of time considered reasonable for a diligent prisoner to determine the status of his or her case. But the panel ruled that in Ryan’s case, two months was a reasonable amount of time.

    “No rule of thumb emerges from the cases on how long prisoners may take to discover their lawyers’ missteps, and we hesitate to pick a magic number,” Judge Bauer wrote.

    By Joe Forward, Legal Writer, State Bar of Wisconsin