MEMORANDUM OPINION
ALEXANDER WILLIAMS JR., District Judge
Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed by Petitioner, Arthur Clemmer (Doc. No. 31), and a Motion for Entry of Default Judgment (Doc. No. 38). On September 15, 2005, and pursuant to a written plea agreement dated September 13, 2005, Petitioner entered a guilty plea to count I, Unlawful Possession of a Silencer, in violation of 26 U.S.C. §§ 5861(d), 5871, a Class C Felony. A presentence report was ordered and the matter was set down for a sentencing hearing on December 7, 2005. The Court imposed a 120 month sentence of incarceration followed by three years supervised release. Judgment was entered on December 7, 2005. On December 15, 2005, Petitioner filed a notice of appeal, but was dismissed on the Petitioner's own motion on April 6, 2006. Petitioner filed the present § 2255 motion on December 2, 2009. The default motion was filed on May 21, 2010. For the reasons that follow, both motions are DENIED.
Petitioner presents three claims in support of his Motion to Vacate. First, Petitioner asserts that his trial counsel was ineffective thereby depriving him of his Sixth Amendment right to competent counsel. Second, Petitioner asserts that the District Court erred pursuant to 18 U.S.C. § 3553 by imposing an unreasonable sentence. Last, Petitioner argues that his filing is not untimely barred because 1) the limitations period did not begin to run pursuant to § 2255(f)(4), or, in the alternative, 2) the doctrine of equitable tolling stopped the limitations period from running. The Court ordered the Government to respond to Petitioner's Motion to Vacate, but only as to the timeliness issue. The Government did not respond on time, and, due to this, Petitioner submitted a Motion for Summary Judgment on April 23, 2010, (Doc. No. 35), which the Court denied on May 10, 2010, (Doc. No. 36). In relation to that motion, Petitioner submitted a Motion for Entry of Default Judgment. (Doc. No. 38.) The Government requested an extension of time for its response (Doc. No. 39), which the Court granted on May 25, 2010. (Doc. No. 40.) The Government has responded to Petitioner's Motion to Vacate. (Doc. No. 43.) Petitioner has filed his reply. The Motion to Vacate Pursuant to 28 U.S.C. § 2255 and the Motion for Default Judgment are now ripe for resolution. The Government has clearly participated in the resolution of this matter, and its delay in responding does not rise to the level of default. Thus, Petitioner's Motion for Entry of Default Judgment is DENIED.
The Court also denies the Motion to Vacate as untimely. Federal prisoners have one year to file a petition for post-conviction relief following "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). "[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Clay v. United States, 537 U.S. 522, 525 (2003). A petition for a writ of certiorari must be filed within 90 days following the appellate court's judgment. Id.
Here, the Fourth Circuit dismissed the Petitioner's appeal on April 4, 2006, giving him until July 3, 2006, to file a petition for a writ of certiorari. This means that July 3, 2007, was the deadline for seeking post-conviction relief under § 2255. Petitioner's petition, filed December 2, 2009, is well after this date, and therefore is untimely.
Petitioner relies on the language of § 2255(f)(4) to argue that the filing period for his petition did not begin to run by the time he filed. Subsection (f)(4) states that the limitations period does not begin to run until "the date on which the facts supporting a claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f)(4). Petitioner claims that he was unaware that § 2255 was the proper mechanism with which to bring an ineffective assistance of counsel claim, and that once he discovered this he "moved quickly and diligently" with his § 2255 petition. (Doc. No. 31 at 9-10.) This subsection of § 2255 is unavailing, however, because the type of "fact" § 2255(f)(4) refers to is a fact concerning the underlying claim, not the "fact" of § 2255's existence or relevance to the petitioner's claims. Petitioner does not claim that he could not have discovered facts related to his underlying claim of ineffective assistance of counsel, therefore subsection (f)(4) is inapplicable.
In addition, contrary to Petitioner's assertions, equitable tolling is not applicable to this case. It is certainly true that "§ 2255's limitation period is subject to equitable modifications such as tolling." United States v. Prescott, 221 F.3d 686, 688 (4th Cir. 2000). Equitable tolling, however, is an "extraordinary remedy" that is "sparingly granted," id. (citing Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990)), applicable in only rare circumstances. Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc). The Fourth Circuit has stated that it believes "that any resort to equity must be reserved for those rare instances where — due to circumstances external to the party's own conduct — it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). To invoke the doctrine of equitable tolling for an otherwise untimely petition, the petitioner must show "(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time." Rouse, 339 F.3d at 246.
Petitioner argues that equitable tolling should apply in this case. He states that he relied on the incorrect advice of a "jail-house lawyer" as to what was the proper petition to file for post-conviction relief (Aff. of Pet'r ¶ 7), and also states that his trial attorney never advised him about § 2255 relief (Id. ¶ 11). These claims do not rise to the level of extraordinary circumstances external to Petitioner's own conduct. "[E]ven in the case of an unrepresented prisoner, ignorance of the law is not a basis for equitable tolling." United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (citing Cross-Bey v. Gammon, 322 F.3d 1012, 1015 (8th Cir. 2003)). That is to say, lack of legal knowledge or mistake on the petitioner's part do not warrant equitable tolling, id. (citing United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002)), because the petitioner's misconception about the law is not an extraordinary circumstance external to his control. Id. Thus, Petitioner's claims of legal ignorance and reliance on "jail-house lawyers" are not extraordinary circumstances external to his control where the doctrine of equitable tolling can overcome the statute of limitations set by the legislature. See, e.g., Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) ("[I]t is well established that ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.").
Petitioner relies on the five factors laid out in Dunlap v. United States, and asserts that he can match all such factors to his case. 250 F.3d 1001, 1008-09 (6th Cir. 2001). Even assuming Petitioner can satisfy the Dunlap factors, the Court must deny Petitioner's request for equitable tolling. Dunlap is a rejection of the "extraordinary circumstances" test endorsed by the Fourth Circuit in Rouse. See Sellers v. Burt, 168 Fed. App'x 132, 133-34 (8th Cir. 2006) (per curiam) (holding that the Sixth Circuit's five-factor analysis is an alternative approach to the "extraordinary circumstances" approach used in the Eighth Circuit, thus it had to be denied in petitioner's case). As a result, the Dunlap factors are inapposite to the instant action. Accordingly, Petitioner's assertion that his petition was timely filed is incorrect, and the Motion to Vacate must be rejected as a result.
The Court has reviewed the current pleadings and the files relative to the present motion and the underlying criminal case in their entirety. The Court finds that the Motion to Vacate was untimely filed. As a result, the Court will not reach the merits of Petitioner's ineffective assistance of counsel and adequacy of sentence claims. Accordingly, the Motion to Vacate Sentence Pursuant to § 2255 is DENIED.
Certificate of Appealability
There is no absolute entitlement to appeal a district court's denial of § 2255 petition. 28 U.S.C. § 2253(c)(1)(B) (2006). Accordingly, "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this burden an applicant must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). In this case, the Court has dismissed the petition on procedural grounds. In the context of a habeas corpus proceeding, the Supreme Court has held that when a petition is denied on procedural grounds
a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. . . . Where
a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.
Id. (emphasis added).
Here, it is the Court's view that Petitioner has raised no arguments which causes this Court to view the issues as debatable, or finds that the issues could have been resolved differently, or to conclude that the issues raise questions which warrant further review. Accordingly, the Court DENIES a Certificate of Appealability.
A separate order will follow.
Conferred with _____ about .10 .10 consent issue. 2/14/2008 Conferred with Captains' .80 .80 union representative (_____) regarding resolution, damage calculation. 2/15/2008 Conferred with 1.00 1.00 representatives of Captains union (_____) and Local 419 (_____) regarding damage calculations, settlement status. 2/20/2008 Conferred with _____ about .50 .50 consent issue; reviewed documents regarding the same; conferred with opposing counsel about the same. 2/21/2008 Conferred with _____ about .10 .10 consent issue. 2/27/2008 Conferred with opposing .30 .30 counsel regarding plaintiff's case.
2/28/2008 Conferred with _____ about .20 .20 payment disputes and consent issues.
3/4/2008 Conferred with _____ about .40 .40 payment disputes; overtime issues. 3/5/2008 Conferred with _____ about .20 .20 consent issues. 3/12/2008 Conferred with _____ about .40 .40 payment and settlement issues. 3/18/2008 Conferred with _____ and .30 .30 _____ about payment issues. 3/26/2008 Conferred with opposing .40 .40 counsel and _____ about consent issue. 3/27/2008 Conferred with _____ about .60 .40 plaintiffs and wage issues; reviewed documents regarding the same. 4/3/2008 Conferred with _____ about .30 .30 calculation issues. 4/14/2008 Conferred with _____ about .20 .20 consent and payment issues. 4/16/2008 Conferred with _____ about .20 .20 consent issue. 4/19/2008 Conferred with opposing .40 .40 counsel regarding payment; conferred with _____ about the same. 4/23/2008 Conferred with opposing .50 .40 counsel about non-payment; conferred with _____ and _____ about the same; strategized about response.
4/24/2008 Conferred with opposing .40 .40 counsel about class members; conferred with _____ and _____ about damage issues. 4/25/2008 Conferred with _____ about .50 .50 consent issues; conferred with opposing counsel regarding the same. 5/5/2008 Conferred with opposing .20 .20 counsel about calculations. 5/6/2008 Conferred with _____ about .20 .20 wage summaries. 5/7/2008 Conferred with _____, _____ .50 .50 about wage summaries, other issues. 5/8/2008 Conferred with _____ about .40 .40 wage summaries and settlement terms; conferred with opposing counsel regarding the same. 5/9/2008 Review of calculations .20 .00 provided by opposing counsel. 5/10/2008 Conferred with _____ about .20 .20 PWC report. 5/11/2008 Conferred with _____r about .10 .10 wage calculation controversy.
5/13/2008 Meeting with _____, _____, 7.00 2.00 and E-Board members from Locals to review records; conferred with opposing counsel; reviewed records for K-9 officers; researched law on precedents in K9 cases; preparation of memorandum regarding the same. 5/14/2008 Conferred with Attorney .60 .60 Decker about calculations. 5/16/2008 Conferred with _____ about .30 .20 wage summaries; reviewed wage summary.
5/18/2008 Conferred with _____ about .20 .20 calculation dispute. 5/19/2008 Conferred with _____ about 1.30 .90 wage summaries; review of K-9 spreadsheets sent by opposing counsel. 5/20/2008 Conferred with clients 5.00 5.00 about wage summaries (_____, _____, _____, _____, _____); wrote memorandum regarding the same; conferred about K-9 summaries with K-9 officers (_____, _____, _____, _____). 5/21/2008 Conferred with clients 9.00 9.00 (see below) regarding wage summaries; correspondence with them regarding the same. 5/22/2008 Consultations and 6.10 6.10 correspondence with numerous clients about their wage summaries and other issues surrounding the resolution of the action.
5/23/2008 Conferred with and 5.20 5.20 Correspondence with numerous clients about their wage summaries and other issues related to the resolution of the action. 5/24/2008 Conferred and corresponded 2.00 2.00 with clients regarding damage summaries. 5/25/2008 Conferred with clients 1.30 1.30 about wage summaries. 5/26/2008 Conferred with clients 2.50 2.50 about wage summaries. 5/27/2008 Conferred with multiple 3.50 3.50 clients about wage summaries. 5/28/2008 Conferred with multiple 3.10 3.10 clients regarding wage summaries. 5/29/2008 Conferred with clients 2.40 2.40 about wage summaries. 5/30/2008 Conferred with multiple .70 .70 clients regarding wage summaries. 5/31/2008 Conferred with _____ about 2.50 2.50 ongoing issues, including calculations and releases; conferred and corresponded with clients about damage summaries. 6/1/2008 Conferred with clients .80 .60 about wage and damage issues; review of documents regarding the same. 6/2/2008 Conferred with clients 1.70 1.70 about their wage summaries; corresponded with them about the same.
6/3/2008 Conferred with multiple 2.00 2.00 clients about their wage summaries; corresponded with them about the same. 6/4/2008 Conferred with multiple 1.50 1.50 clients about their wage summaries. 6/5/2008 Conferred with multiple 4.50 4.50 clients about their wage summaries. 6/6/2008 Conferred with clients 2.00 2.00 about their wage summaries; corresponded with them about the same.
6/7/2008 Conferred with clients 1.30 1.30 about their wage summaries. 6/8/2008 Conferred with clients 1.20 1.20 about their wage summaries. 6/9/2008 Conferred with clients 1.50 1.50 about their wage summaries. 6/10/2008 Conferred with clients .30 .30 about their wage summaries. 6/11/2008 Conferred with clients .40 .40 about wage summaries, releases, payments. 6/12/2008 Conversation with _____ 2.60 2.60 regarding pay outs; conversation with opposing counsel regarding payment issues; conferred with clients about wage summaries.
6/16/2008 Met with _____ about K-9 3.20 3.20 calculations and many errors in K-9 calculations; corresponded and conferred with clients about the same. 6/17/2008 Conferred with clients .40 .40 about wage summaries. 6/18/2008 Met with _____ regarding 3.50 3.50 wage summary; conferred with clients about the same. 6/19/2008 Conferred with clients 2.50 2.50 about wage summaries; review of K-9 information; conferred with _____ about payment processing. 6/20/2008 Reviewed K-9 information; 4.13 3.13 conferred with K-9 clients about errors in all of their calculations; correspondence to opposing counsel regarding the same; wrote proposed release form. 6/22/2008 Conferred with _____ about .10 .10 wage summary and damages. 6/23/2008 Conferred with _____ about 2.30 1.30 release form; reviewed and drafted release; conferred with clients about wage summaries; correspondence to opposing counsel about release; review of academy settlement issues. 6/24/2008 Conferred with clients 2.07 1.70 about wage summary; conferred with _____ about calculations; conferred with opposing counsel about release; reviewed release.
6/25/2008 Conferred with opposing .90 .90 counsel regarding wage summaries, releases, payments; conferred with clients regarding the same. 6/26/2008 Conferred with clients .30 .30 about wage summary and differential issues. 6/27/2008 Met with opposing counsel 1.80 1.80 regarding outstanding issues; conferred with _____ about release, payments, and other matters at issue. 6/29/2008 Conferred with _____ about .20 .20 wage summary and differential issues. 6/30/2008 Conferred with opposing 1.50 1.50 counsel about release and other issues, including K- 9 matter; conferred with _____ about ongoing issues; reviewed wage summary and corresponded with clients about the same. 7/1/2008 Conferred with clients .50 .50 about payments, releases, summaries.
7/2/2008 Conferred with _____ about .30 .30 payments, releases. 7/3/2008 Conferred with _____ about .80 .80 release issues; corresponded and conferred with opposing counsel regarding the same.
7/7/2008 Conferred with clients 4.90 2.40 regarding wage summary; reviewed correspondence from opposing counsel regarding release; reviewed proposed release from Sheriff's Department; research law on language proposed by Sheriff; conferred with _____ about release and system to process signing and payments; conversation with opposing counsel regarding release; review of correspondence from union regarding release and meeting to sign documents. 7/9/2008 Prepared for meeting with 7.00 7.00 clients about release forms and their wage summaries; correspondence with clients about release forms and summaries; correspondence with clients about K-9 issues; conferred with clients about wage summaries and releases. 7/10/2008 Prepared for meeting with 11.00 11.00 clients from all shifts; met with clients from all shifts at BTU hall throughout the day; conferred with them about release forms, summaries; conferred with clients about release forms and summaries. 7/12/2008 Conferred with clients 1.50 1.40 about release forms and summaries; review of the same.
7/15/2008 Correspondence to all 4.70 4.70 plaintiffs about release forms and ongoing issues; correspondence to opposing counsel regarding the same; conferred with clients about wage summaries and releases; wrote memoranda regarding the same; conferred with multiple clients about their releases and summaries. 7/18/2008 Correspondence to opposing 2.10 2.10 counsel regarding outstanding issues; correspondence to all clients regarding the same; conferred with clients about release and differential issues. 7/20/2008 Conferred with clients 1.70 1.30 regarding wage summaries, differential issue for education and weekend; review of releases. 7/21/2008 Conferred with opposing 3.00 2.00 counsel about differential issue; conferred with _____ about the same; drafted memo regarding issue; draft proposal for dealing with issue; conferred with clients about summaries. 7/22/2008 Conferred with clients .50 .50 about wage summaries and releases.
7/24/2008 Conferred with opposing 3.90 3.00 counsel regarding proposal to deal with ongoing differential issue, K-9 issues, and nisi period; conferred with _____ regarding the same; correspondence with clients about wage summaries and releases; wrote supplemental agreement.
7/25/2008 Conferred with client .80 .50 (_____) regarding wage summaries, releases, and payments; wrote supplemental agreement. 7/26/2008 Conferred with client .20 .20 (_____) about summary; reviewed the same. 7/27/2008 Conferred with clients .80 .80 about summaries and differential issues; review of summaries regarding the same. 7/28/2008 Conferred with clients .40 .40 about wage summaries, releases, payments; call to opposing counsel regarding the same. 7/29/2008 Conferred with _____ about 1.50 1.50 resolution of differential issues, submission of releases; correspondence to opposing counsel regarding the same; conferred with opposing counsel about settlement of renewed violation; conferred with client (_____) about wage summary.
7/30/2008 Conferred with clients 2.40 2.40 about Release continued violation issue, and unilateral attempt to cure ongoing violation; wrote memo to plaintiffs regarding delay in payments. 7/31/2008 Conferred with clients 2.30 2.00 about wage summaries, payments, releases, continued violation issues; telephone to opposing counsel regarding the same; wrote memorandum regarding unilateral payments. 8/1/2008 Conferred with client .60 .60 (_____) about payments and ongoing violation issues; telephone to opposing counsel regarding the same. 8/4/2008 Correspondence to all 2.50 2.50 clients about delayed payments, ongoing violations, Sheriff's response to the same; correspondence to opposing counsel regarding ongoing issues with payments; conferred with client about supplemental agreement; conferred with opposing counsel regarding the same; reviewed proposal from opposing counsel on supplemental agreement; advised client regarding the same.
8/5/2008 Conferred with _____ about 2.40 2.40 supplemental agreement; reviewed releases for submission; correspondence to opposing counsel regarding submission; met with clients about releases and submission; message to opposing counsel regarding submission of releases; conferred with client about submission, time for payment. 8/6/2008 Met with _____ and reviewed 1.40 1.00 his summary; reviewed wage data; reviewed releases; correspondence to opposing counsel regarding the same. 8/7/2008 Conferred with clients 1.00 .80 about settlement issues; conferred with opposing counsel regarding the same; review case document for responses. 8/8/2008 Conferred with clients .10 .10 about damages. 8/9/2008 Conferred with client .20 .20 (_____) about penalties and damages.
8/12/2008 Conferred with K-9 officer 1.00 1.00 (_____) about outstanding issues; conferred with client (_____) about wage summary and settlement; conferred with _____ about releases, submissions, and payments.
8/13/2008 Conferred with _____ about 1.00 1.00 late payment issue; communication to opposing counsel requesting clarification of same; correspondence to opposing counsel regarding releases. 8/14/2008 Conferred with clients .30 .30 regarding wage summary and time for payment. 8/15/2008 Conferred with client .90 .90 (_____), about summary; wrote notice for court regarding enlargement for review period; conversation with clerk about status; correspondence to opposing counsel regarding the same; drafted notice of change of address; wrote memo on update of status. 8/18/2008 Wrote memo to all 1.00 1.00 plaintiffs about enlargement of review period, status of payments. 8/19/2008 Conferred with client .50 .50 about case status; review of wage summary. 8/20/2008 Conferred with clients .40 .40 about wage summaries and payments. 8/21/2008 Conferred with client .30 .30 (_____) about wage summaries, releases, payments.
8/22/2008 Conferred with clients 2.10 1.50 about payments; reviewed releases; prepared submission of releases for Sheriff; conferred with opposing counsel about submission of releases. 8/23/2008 Conferred with _____ about .10 .10 payments. 8/24/2008 Conferred with clients .70 .50
about damage summaries and payments; conferred with K-9 officers regarding the same; conferred with Brad Louison (JOSAC attorney) about resolution. 8/25/2008 Conferred with clients 1.30 1.30 about releases and payments; correspondence to opposing counsel regarding the same. 8/26/2008 Conferred with (_____) 1.00 .50 about releases and summaries; review of payments, releases not filed. 8/29/2008 Met with K-9 officer about 1.50 1.50 negotiation status; correspondence to opposing counsel regarding settlements; conferred with clients about releases and summaries. 9/2/2008 Conferred with _____ about .10 .10 differentials and damages. 9/3/2008 Conferred with clients .70 .50 about wage summaries; review of releases.
9/4/2008 Met with client about wage 2.50 2.50 summary; correspondence with opposing counsel about releases; conferred with clients (_____) about the same.
9/7/2008 Conferred with clients .20 .20 about education differential, payments (_____, _____). 9/8/2008 Conferred with opposing .10 .10 counsel regarding case issues. 9/9/2008 Conferred with client .10 .10 (_____) about payment. 9/10/2008 Conferred with clients .70 .50 (_____) about summary of hours issue; conferred with opposing counsel about plaintiffs; review of settlement agreements. 9/11/2008 Conferred with K-9 officer .20 .20 about settlement dispute. 9/12/2008 Conferred with clients .40 .40 about payment disputes, differential pay. 9/15/2008 Conferred with opposing .10 .10 counsel about plaintiffs. 9/17/2008 Conferred with K-9 officer .50 .50 about settlement issues; K-9 dispute. 9/18/2008 Telephone to opposing .20 .10 counsel; review of correspondence relating to calculations.
9/19/2008 Review of releases; 2.20 2.20 conferred with opposing counsel regarding K-9 portion and other matters; correspondence with K-9 clients regarding the same; correspondence with _____ on ongoing issues; conferred with other client _____ about the same issue. 9/23/2008 Conferred with K-9 officer .40 .40 about settlement dispute, conferred with client (_____) about education differential, continued violation. 9/29/2008 Conferred with clients .30 .30 about calculation issues. 9/30/2008 Conferred with _____ about .90 .90 consent list; conferred with opposing counsel about consent issue; review documents regarding the same. 10/2/2008 Met with members of Union 2.50 2.50 Executive Board about summaries; reviewed release; cover letter to Sheriff regarding the same. 10/9/2008 Conferred with _____ about .10 .10 calculation dispute. 10/10/2008 Conferred with _____, about 1.50 1.50 his wage summary; reviewed release form; submitted same to Sheriff; telephone to opposing counsel regarding settlement issues.
10/11/2008 Conferred with _____ about .40 .20 consent issue; strategized about the same. 10/14/2008 Conferred with client, .30 .30 _____, about his summary. 10/15/2008 Met with client (_____) 1.00 1.00 about wage summary; reviewed release with her; correspondence to opposing counsel about the same. 10/17/2008 Conversation with K-9 .40 .40 officer about delay in settlement; correspondence to him about the same. 10/20/2008 Correspondence with client .30 .30 about Sheriff's continued failure to address outstanding issues,
including K-9 case and provide information about employees not yet paid. 10/29/2008 Met with _____ about wage 1.00 1.00 summary. 10/31/2008 Conferred with K-9 officer .20 .20 about payment dispute; conferred with opposing counsel regarding the same. 11/3/2008 Conferred with client .50 .20 about release and wage summary; review of court order regarding case. 11/6/2008 Conferred with opposing .50 .40 counsel regarding K-9 issue, review period; reviewed releases and transmitted same to opposing counsel. 11/10/2008 Called clerk about .10 .10 extending date for review.
11/13/2008 Correspondence with _____ .20 .20 about K-9 issue; conferred with K-9 officers about the same. 11/14/2008 Correspondence to opposing .60 .60 counsel regarding failure to address K-9 issue; conferred with K-9 officers about the same. 11/19/2008 Conferred with K-9 officer .30 .30 _____ about damage issues; review of damages regarding the same. 11/20/2008 Conferred with client .20 .20 about superior officers' calculations. 11/21/2008 Reviewed summary with 1.00 1.00 client, _____. 11/24/2008 Met with K-9 officers 2.00 1.50 about continued delays and failure to correct errors in calculations; strategized about the same. 11/25/2008 Conferred with opposing .40 .40 counsel about court conference, ongoing K-9 damage issues. 12/2/2008 Conferred with opposing .30 .30 counsel about K-9 issues and related matters. 12/3/2008 Review of K-9 related 1.50 1.00 documents; correspondence to opposing counsel regarding K-9 issues; conferred with K-9 officers regarding the same. 12/10/2008 Conferred with opposing .10 .10 counsel about K-9 issues.
12/11/2008 Conferred with _____ about .20 .20 damage issue. 12/15/2008 Conferred with _____ about .10 .10 K-9 damage issue. 12/17/2008 Correspondence to opposing .20 .20 counsel regarding K-9 damage issue; conferred with _____ regarding the same. 12/19/2008 Conferred with _____ about .20 .20 payment and calculation disputes. 12/22/2008 Conferred with _____ about 1.20 .60 K-9 nonpayment; wrote request for status conference; conferred with opposing counsel about the same. 12/23/2008 Conferred with opposing 1.00 1.00 counsel about delays in K- 9 settlement; correspondence regarding the same; conferred with K-9 officers about settlement issues.
1/5/2009 Conferred with _____ .10 .10 regarding damages. 1/7/2009 Conferred with opposing .20 .20 counsel regarding damages issues; conferred with _____ about the same. 1/8/2009 Conferred with K-9 1.10 1.10 officers about K-9 payments; conferred with opposing counsel regarding same; correspondence to clients about status; review of wage summary and release.
1/12/2009 Conferred with _____ about .30 .30 payment issues. 1/13/2009 Conferred with K-9 .50 .50 officers about partial payments; concerns about unilateral payment, and correspondence with Sheriff's attorney; conferred with officers about damage issues. 1/16/2009 Conferred with K-9 .90 .90 officers about payments made, and impact on settlement agreement, and about status conference. 1/20/2009 Attended local union 2.20 2.20 meetings on status of case, upcoming conference. 1/22/2009 Conferred with client .20 .20 _____ about waiver of rights. 1/23/2009 Conferred with opposing 1.70 1.50 counsel about K-9 damage issue and continued errors in calculations; reviewed spreadsheets regarding same; conferred with _____ about damages; wrote status memo. 1/26/2009 Conferred with _____ and 2.20 1.60 _____ about status conference and outstanding payment issues; conferred with opposing counsel regarding the same; wrote memorandum regarding issues; conferred with clerk regarding issue; corresponded with K-9 clients about issues; reviewed order on motion to enlarge.
1/27/2009 Telephone to opposing .50 .50 counsel regarding case; conferred with _____ regarding the same. 1/29/2009 Correspondence with K-9 2.30 2.30 officers about wage summary issues; conferred with officer regarding the same. 1/30/2009 Conferred with _____ about .40 .40 K-9 calculations. 2/2/2009 Met with K-9 officers 2.00 2.00 about calculations. 2/3/2009 Conferred with _____ about .40 .40 payments, case status, possible continued violations. 2/4/2009 Telephone from _____ .10 .10 regarding payments. 2/5/2009 Conferred with opposing .70 .70 counsel about summaries; review of payment records; conferred with _____ regarding the same, and ongoing issues; telephone to opposing counsel. 2/9/2009 Conferred with K-9 officer .70 .70 about calculation and settlement dispute; continued errors made in calculations. 2/23/2009 Correspondence to opposing 2.80 1.80 counsel about K-9 calculations; conferred with _____ about calculation errors; prepared and reviewed spreadsheets regarding the same.
2/24/2009 Reviewed calculation of K- .40 .40 9 officer, _____, and his correspondence regarding the same. 3/3/2009 Conferred with Gary _____ .40 .30 about calculation dispute; reviewed summary; correspondence to opposing counsel regarding the same. 3/4/2009 Conferred with K-9 .40 .40 officers (_____) about payment dispute; conferred with _____ about calculation issue. 3/5/2009 Conferred with K-9 officer .40 .40 (_____) regarding calculation and settlement issues. 3/6/2009 Conferred with K-9 officer .30 .30 (_____) regarding calculation issues; telephone to opposing counsel regarding the same. 3/7/2009 Conferred with officer .30 .30 (_____) regarding calculation issues. 3/17/2009 Conferred with K-9 .40 .40 officers (_____) about payment error controversy. 3/18/2009 Met with _____ about K-9 2.50 2.00 issues; met with opposing counsel about the same, and other outstanding issues; review of documents and summaries to support amended payments; conferred with _____ about payment issues.
3/24/2009 Conferred with K-9 officer .20 .20 (_____) about calculation issues. 3/25/2009 Conferred with K-9 officer .30 .30 _____ about calculations. 3/26/2009 Conferred with _____ about .40 .40 K-9 settlement issues; conferred with him about differentials. 4/1/2009 Conferred with K-9 .70 .70 plaintiffs about calculation error dispute; communications to Sheriff's Department about same. 4/2/2009 Conferred with K-9 clients .10 .10 regarding K-9 dispute. 4/3/2009 Conferred with _____ about .70 .70 differentials and underpayments; conferred with K-9 officer about payments; telephone to Defendant regarding the same. 4/6/2009 Conferred with _____ .20 .20 regarding differentials. 4/7/2009 Telephone to Sheriff .40 .40 regarding K-9 issue; conferred with K-9 clients regarding the same. 4/8/2009 Conferred with K-9 clients .50 .50 regarding K-9 issues; telephone to opposing counsel regarding the same. 4/9/2009 Conferred with _____ about .40 .40 K-9 payments.
4/10/2009 Correspondence with _____ 1.30 1.30 about payments and calculation controversy; correspondence to opposing counsel regarding the same; conferred with K-9 clients regarding the same and case status. 4/14/2009 Conferred with K-9 officer .30 .30 _____ about settlement issues.
4/16/2009 Correspondence to opposing .50 .50 counsel regarding K-9 issues; correspondence to _____ regarding the same. 4/17/2009 Conferred with _____ .20 .20 regarding case. 4/18/2009 Conferred with _____ about .40 .40 non-payment issue; conferred with opposing counsel regarding the same. 4/22/2009 Conferred with _____ about .90 .60
settlement and ongoing dispute over payments; conferred with opposing counsel regarding the same; conferred with counsel regarding settlement and fee petition; conferred with clerk's office about order and request to extend. 4/28/2009 Conferred with _____ about .10 .10 payment status.
5/4/2009 Conferred with opposing .20 .20 counsel regarding settlement period expansion due to K-9 issue. 5/6/2009 Conferred with K-9 .50 .50 officers about payment and calculation dispute; conferred with opposing counsel regarding the same. 5/7/2009 Drafted request for .60 .60 enlargement due to K-9 ongoing issues; filed same with court; conferred with them regarding the same. 5/13/2009 Correspondence with 1.20 1.20 opposing counsel regarding K-9 payments; correspondence with K-9 officers (_____) regarding the same; review of summaries and their comments about the same. 5/18/2009 Communications with _____ .90 .90 about calculation error; review of documents regarding the same; correspondence with opposing counsel regarding the same; conferred with _____, and _____ about payments. 5/19/2009 Conferred with counsel .50 .00
regarding fee petition; review of documents regarding the same. 6/8/2009 Conferred with _____ about .10 .10 payment status.
6/16/2009 Reviewed correspondence .40 .00 from opposing counsel regarding PWC calculations; review of calculations. 6/17/2009 Conferred with client .10 .10 about payment status. 6/22/2009 Conferred with _____ about .10 .10 plaintiff status. 7/12/2009 Conferred with _____ about .10 .10 K-9 payment. 7/13/2009 Conferred with _____ about .10 .10 payment status. 7/25/2009 Conferred with _____ about .10 .10 payment status. 7/27/2009 Conferred with _____ about .10 .10 payment status. 8/17/2009 Conferred with JOSAC .20 .00
attorney (Louison) about case status, areas of mutual concern.
8/18/2009 Conferred with _____ about .20 .20 union meeting regarding payments and ongoing violations. 9/14/2009 Conferred with _____ and 2.00 2.00 _____ about unpaid class members; review of records showing the same; conferred with opposing counsel regarding the same. 9/24/2009 Reviewed correspondence .10 .10 from Sheriff's Department Personnel Director about payment issues.
9/28/2009 Corresponded with clients 1.50 1.30 regarding unclaimed monies; review of documents regarding the same. 9/29/2009 Reviewed summaries and 1.50 1.30
release forms for transmission to clients not yet paid; correspondence to opposing counsel with release of client; conferred with Jail union attorney (Louison) about related case, release in light of apparent continued violation. 9/30/2009 Conferred with client .30 .30 about wage summary. 10/3/2009 Conferred with JOSAC .20 .10
attorney about case; conferred with Scott Walker about case resolution. 10/5/2009 Review of releases; .60 .30 preparation of transmittal of releases to opposing counsel; correspondence with him regarding the same. 10/6/2009 Review of releases; .50 .20 preparation of transmittal of releases to opposing counsel; correspondence with him regarding same; conferred with _____ about payment status.
10/8/2009 Preparation for meeting 2.10 .10
with JOSAC attorney (Louison) for case settlement issues; review of documents regarding the same; correspondence with him about settlement issues, continuing violations; conferred with client (_____) about payment status. 10/13/2009 Reviewed settlement .30 .30 agreements; correspondence to opposing counsel regarding the same. 10/14/2009 Reviewed settlement 1.90 1.00 documents and case status; filed enlargement; conferred with opposing counsel regarding the same; attended meeting of union officials regarding status. 10/15/2009 Conferred with _____ about .10 .10 payment status. 10/19/2009 Conferred with Sheriff's .20 .20 Department about client payment; conferred with Peter Moccio about outstanding money owed plaintiffs. 10/20/2009 Conferred with Department .30 .20 about remaining employees; reviewed information regarding the same.
10/28/2009 Conferred with client .10 .10 about payment status.
10/30/2009 Conferred with _____ about .20 .20 payment status; conferred with opposing counsel about unilateral payments made to cover continuing violation. 11/2/2009 Conferred with _____ about .20 .20 release form. 11/3/2009 Conferred with _____ about .30 .30 latest payments, inquiry about formula Sheriff is using to pay for differentials. 11/4/2009 Reviewed documents for fee 2.75 1.00
petition; reviewed releases; correspondence to opposing counsel; conferred with _____ and _____ about plaintiffs not able to locate; correspondence to opposing counsel about remaining plaintiffs. 11/5/2009 Conferred with _____ about 1.80 .80 calculation summary and release; review of the same; review and coordinate case information for closeout of matter. 11/9/2009 Conferred with _____ about .20 .20 payments to remaining plaintiffs. 11/13/2009 Conferred with _____ about .20 .20 back pay issue impacting plaintiff. 11/16/2009 Conferred with plaintiff .10 .10 about wage payment.
11/27/2009 Review release and .10 .10 transmit to Sheriff. 12/29/2009 Conferred with client .20 .20 about his settlement agreement. 1/5/2010 Conferred with Department .30 .30 and _____ about outstanding payments. 1/6/2010 Conferred with _____ about .50 .50 non-payment issues; communication to Department about release submitted. 1/9/2010 Conferred with _____ about .30 .30 summary issues, including outstanding payments due. 1/11/2010 Conferred with _____ about .50 .30 release; review of outstanding payment issues. 1/15/2010 Review order on motion to .10 .10 enlarge; communication to opposing counsel request conference to narrow dispute. 1/28/2010 Conferred with counsel in .40 .00
related action about contempt request against Sheriff's Department for failure to pay settlements. 1/29/2010 Conferred with opposing .50 .00
counsel in response to request for issue narrowing under Rule 7, and other matters.
2/1/2010 Conferred with Department .10 .10 about payment issue impacting class member.
2/6/2010 Review recent order .40 .00
supporting fee petition; conferred with opposing counsel regarding the same in effort to narrow dispute over fee petition. 3/1/2010 Conferred with opposing .20 .00
counsel about case status, including attempt to narrow fee petition issues. 3/3/2010 Conferred with _____ about .60 .60 non-payment; notified opposing counsel of the same; correspondence from Bill Sweeney about reason for non-payments, conferred with opposing counsel regarding the same. 3/25/2010 Correspondence to opposing .20 .20 counsel regarding payment and compliance issues. 3/26/2010 Conferred with _____ about .20 .20 his release. 4/1/2010 Conferred with opposing .20 .20 counsel about compliance issues, attempt to narrow outstanding issues.
4/2/2010 Conferred with opposing .40 .40 counsel about spreadsheets relating to compliance issues, and Commonwealth's payment of settlements; conferred with class representatives regarding the same. 4/4/2010 Correspondences to .20 .20 opposing counsel about spreadsheets relating to compliance issues; follow up with class representatives regarding the same. 4/7/2010 Reviewed settlement .10 .10 agreement; transmitted the same to opposing counsel. Total 278.65 244.93
3. Petition for Attorneys' Fees
This table, pursuant to Suffolk's argument, only calculates those post-settlement hours categorized as "communications" in Rice's billing summary. Pls.' Pet. Att'ys' Fees Ex. 5.
As one such example, 3.20 hours is charged for the following description for the June 16, 2008 billing entry: "Met with ____ about K-9 calculations and many errors in K-9 calculations; corresponded and conferred with clients (_____) about the same." Pls.' Pet. Att'ys' Fees Ex. 5 at 67.
Finally, Suffolk contends that the Officers' should not be entitled to recover fees for Rice's hours spent preparing the Petition for Attorneys' Fees. Opp'n Pls.' Pet. Att'ys' Fees 5-6. The First Circuit consistently has held that "time reasonably expended in connection with fee applications is itself compensable," Brewster v. Dukakis, 3 F.3d 488, 494 (1st Cir. 1993), however the Court will exercise its discretion to ensure that such an award is fair and reasonable. This Court views the reasonableness of the hours expended in preparing a fee petition in light of the fact that such preparation "often amounts to little more than `documenting what a lawyer did and why he or she did it.'" Brewster, 3 F.3d at 494 (quoting Gabriele v. Southworth, 712 F.2d 1505, 1507 (1st Cir. 1983)). Rice submits that he expended a total of 45.85 hours preparing the fee petition, as shown in the table provided below. See generally Pls.' Pet. Att'ys' Fees Ex. 5. Given the fact that Rice purports contemporaneously to have recorded the billing records, 45.85 hours is excessive and must be reduced to 35 hours. Thus, 10.85 hours must be subtracted from the total number of hours Rice expended on this matter. Table 3: Hours Expended Preparing for Fee Petition Date Description Hours Fee Reported Hours 4/22/2009 Conferred with _____ about .90 .30 settlement and ongoing dispute over payments; conferred with opposing counsel regarding the same; conferred with counsel regarding settlement and fee petition; conferred with clerk's office about order and request to extend. 5/19/2009 Conferred with counsel .50 .50 regarding fee petition; review of documents regarding the same. 11/4/2009 Reviewed documents for fee 2.75 1.75 petition; reviewed releases; correspondence to opposing counsel; conferred with _____ and _____ about plaintiffs not able to locate; correspondence to opposing counsel about remaining plaintiffs. 11/6/2009 Researched law on fee award 1.00 1.00 in FLSA actions. 11/11/2009 Researched law for fee 2.30 1.50 petition; reviewed settlement agreements for transmittal to Sheriff; conferred with opposing counsel about case status. 11/30/2009 Draft/revised fee petition. 6.50 6.50 12/1/2009 Draft/revised fee petition; 3.90 3.90 research law on issues related to the same. 12/2/2009 Draft/revised fee petition. 5.00 5.00 12/3/2009 Draft/revised fee petition. 1.00 1.00 12/5/2009 Draft/revised fee petition. .70 .70 12/6/2009 Draft/revised fee petition. .80 .80 12/7/2009 Draft/revised fee petition. 3.60 3.60 12/8/2009 Draft/revised fee petition. 3.00 3.00 12/9/2009 Draft/revise fee petition; 2.40 2.30 conferred with _____ about payment summary dispute. 12/15/2009 Draft/revised fee petition; 3.00 3.00 researched law on awards in other FLSA cases. 12/16/2009 Review/analyze and revised 2.80 2.80 fee petition. 1/25/2010 Review/analyzed fee awards 1.60 1.60 for amendments to draft of fee petition. 1/29/2010 Conferred with opposing .50 .50 counsel about delays in response to request for narrowing under Rule 7, and other matters. 2/3/2010 Drafted and revised fee 2.50 2.50 petition. 2/5/2010 Draft/revise fee petition. 3.00 3.00 2/6/2010 Review recent order .40 .40 supporting fee petition; conferred with opposing counsel regarding the same in effort to narrow dispute over fee petition. 3/1/2010 Conferred with opposing .20 .20 counsel about case status, including attempt to narrow fee petition issues. Total 48.35 45.85
This table represents the Court's determination of the number of hours devoted to preparation of the petition for fees. Due to block billing, again, the Court had to exercise its sound judgment in so deciphering.
Accordingly, this Court concludes that the reasonable hours extended by Rice in this matter, after taking into account the above deductions (5.30 for unrelated communications, 48.986 for excessive post-settlement communications, and 10.85 for the fee petition), total 1,113.434 hours.
Suffolk did not dispute the reasonableness of the number of hours expended by Decker or Delaney. As a result, this Court finds that Decker's purported 6.10 hours and Delaney's purported 31 hours are reasonable.
D. Adjustment of Lodestar Calculation
It is within the Court's discretion to adjust the lodestar figure. See Hensley, 461 U.S. at 434. In exercising such discretion, the results obtained are the "preeminent consideration." Coutin v. Young Rubicam P.R., Inc., 124 F.3d 331, 338 (1st Cir. 1997). Determining the nature of the rights obtained includes an analysis of: "(1) a plaintiff's success claim by claim; (2) the relief actually obtained; and (3) the societal importance of the right which has been vindicated."Mogilevsky, 311 F. Supp. 2d at 221 (quoting Coutin, 129 F.3d at 338) (internal quotations omitted).
The Officers contend they achieved the most favorable results attainable under the FLSA and that such results serve an important public interest and that the Officers should, therefore, recover fees accordingly. Pls.' Pet. Att'ys' Fees 5, 17. The Court does not dispute that the Officers' received a favorable settlement agreement furthering FLSA's important societal interests, however this Court concludes that the lodestar sufficiently compensates the parties and equally serves society's interests. See Mogilevksy, 311 F. Supp. 2d at 221 (the rights the FLSA protects are of "substantial importance"). Enhancement of the lodestar is rare and the Officers have failed to overcome the strong presumption favoring its reasonableness.Lipsett, 975 F.2d at 942 ("The [enhancement] exception is a tiny one — and we will not permit it to eclipse the rule.").
Accordingly, this Court awards the Officers a fee equal to the lodestar calculation, as shown below, without further adjustment.
E. Total Lodestar Calculation
The total lodestar calculation is as follows: Name Hours Rate Total Daniel W. Rice 1,113.434 hours $350/hour $389,701.90 Bryan C. Decker 6.10 hours $350/hour $2,135.00 Darlene Delaney 31.00 hours $50/hour $1,550.00 Total $393,386.90 F. Costs
In addition to the lodestar calculation, this Court must determine the costs awarded to the Officers. The Officers requested, and Suffolk did not dispute, an award of $1,418.76. Pls.' Pet. Att'ys' Fees 19; see Opp'n Pls.' Pet. Att'ys' Fees. This Court, thus, awards the Officers $1,418.76 in costs.
III. CONCLUSION
Accordingly, the Officers' Petition for Attorneys' Fees and Costs, ECF No. 127 is ALLOWED. The total award for fees and costs equals $394,805.66.
SO ORDERED.