Court filing
Government's Motion to Dismiss Buck's 28 U.S.C. § 2255 Motion — United States v. Dara Buck
Filed June 5, 2024 in U.S. v. Dara Butler; one of 7 filings from this case.
No. 4:22-cr-00065-RSB-CLR · Doc. 69 · 2024-06-05 · Docket on CourtListener
Full text
Case 4:22-cr-00065-RSB-CLR Document 69 Filed 06/05/24 Page 1 of 12
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA )
)
v. ) CR422-065
)
DARA BUCK )
GOVERNMENT’S MOTION TO DISMISS
BUCK’S 28 U.S.C. § 2255 MOTION
Dara Buck moves the Court to vacate her conviction and sentence pursuant to
28 U.S.C. § 2255. (Doc. 66.) Buck raises three grounds of error: (1) her attorney lacked
jurisdiction to represent her in the state of Georgia; (2) various claims of ineffective
assistance of counsel at the guilty-plea stage; and (3) she was selectively prosecuted
and harshly sentenced because of her military status. The government respectfully
requests the Court dismiss Buck’s Motion to Vacate, Set Aside, or Correct Sentence
as it is untimely.
Background
Buck waived indictment and was charged via information on May 13, 2022,
with one count of conspiracy to commit an offense against the United States in
violation of 18 U.S.C. § 371. (Docs. 1; 24; 28; 30; 40 ¶¶ 1-2; 52 at 2.) Buck, an active-
duty soldier in the United States Army (Chief Warrant Officer 2), led a fraud scheme
wherein she and co-conspirators submitted more than 150 fraudulent Payroll
Protection Program loan applications for COVID-19 relief funds, as well as over a
dozen fraudulent student loan discharge applications to the United States
Department of Education. (Docs. 1 at 7, 9; 30 at 4, 6; 40 ¶¶ 7-11; 52 at 2.) In total,
Case 4:22-cr-00065-RSB-CLR Document 69 Filed 06/05/24 Page 2 of 12
Buck was attributed with $5,025,424 in intended loss, and $3,680,247 in actual loss.
(Docs. 40 ¶ 12; 52 at 2.)
Initially, Buck was represented by Edgar D. Bueno and Matt Wilmot, who
noted in their June 15, 2022, Notice of Appearance that Applications for Admission
Pro Hac Vice would be filed contemporaneously for additional counsel for Buck. 1 (Doc.
8.) Motions for Leave to Appear Pro Hac Vice were filed by James May and Peter
McCoy on June 15, 2022, both of whom were members of the South Carolina Bar as
well as the Bar of the United States District Court for the District of South Carolina.2
(Docs. 9; 10.) The Court granted McCoy and May admission to appear pro hac vice in
the United States District Court for the Southern District of Georgia on June 16,
2022. (Docs. 12; 13.)
A change of plea hearing was held before the Court on July 14, 2022, wherein
Buck’s plea agreement was accepted. (Docs. 29; 30.) In anticipation of sentencing, the
United States Probation Officer prepared an Initial Presentence Investigation Report
on September 19, 2022, and a Final Presentence Investigation Report on December
1 Both Edgar D. Bueno and Matt Wilmot purported to be licensed to practice law in
Georgia at the time of their Notice of Appearance. The State Bar of Georgia shows,
as of June 5, 2024, Bueno and Wilmot are active members in good standing and were
both admitted to the Bar prior to representing Buck. Georgia State Bar Member
Directory, available at https://www.gabar.org/ (last viewed June 5, 2024).
2 Both James May and Peter McCoy purported to be licensed to practice law in South
Carolina at the time of their Motions for Leave to Appear Pro Hac Vice. The South
Carolina Bar shows, as of June 5, 2024, May and McCoy are active members in good
standing and both were admitted to practice prior to representing Buck. South
Carolina Bar Directory, available at https://www.scbar.org/lawyers/directory/ (last
viewed June 5, 2024).
2
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21, 2022. (Docs. 31; 40.) “With a total offense level of 27 and a criminal-history
category of I, her prison range under the advisory sentencing guidelines was 70 to 87
months. However, because the statutorily authorized maximum sentence of five years
was less than the minimum of the applicable guideline range, Buck’s guideline term
of imprisonment was 60 months.” (Doc. 49 at 1, citing Doc. 40 ¶¶ 30, 33, 51, 52.) On
January 5, 2023, the Court varied downward by sentencing Buck to 42 months’
imprisonment followed by three years’ on supervised release, and allowed her to self-
surrender to the Bureau of Prisons. (Docs. 42; 44.) Judgement was filed on January
10, 2023, and Buck did not directly appeal. (Doc. 44.)
Subsequently, Buck filed three motions for compassionate release pursuant to
18 U.S.C. § 3582(c)(1)(A), which have been denied. (Docs. 48; 52; 53; 55; 61. 3) Buck
filed a fourth motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)
on December 13, 2023, which the government opposed on December 20, 2023. (Docs.
62; 64.) A motion to reduce sentence was filed by Buck on February 21, 2024, prior to
the Clerk’s docketing of the instant motion on March 6, 2024, and the Court has
denied Buck’s reduction request. (Docs. 65; 66; 68.)
Relevant Standard
Buck’s burden of proof is high. “A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be released . . . may move the
court which imposed the sentence to vacate, set aside or correct the sentence.” 28
3 This latter order addressed both the second and third motions for compassionate
release.
3
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U.S.C. § 2255(a). “[T]o obtain collateral relief a prisoner must clear a significantly
higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S.
152, 166 (1982). One must demonstrate that an error constitutes a fundamental
defect which inherently results in a complete miscarriage of justice. Moore v. United
States, 2017 U.S. Dist. LEXIS 2635, at *4 (S.D. Ga. Feb. 24, 2017), citing United
States v. Addonizio, 442 U.S. 178, 184-86 (1979). No evidentiary hearing is required
where “the motion and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b); see also Hill v. Lockhart, 474 U.S. 52, 60
(1985) (denying petition without a hearing where petitioner “failed to allege the kind
of ‘prejudice’ necessary to satisfy the second prong of the Strickland v. Washington
test”).
Argument
Buck seeks postconviction relief based on three grounds, one attacks her plea
counsels’ ability to have represented her, one is based on various claims plea counsels
rendered ineffective assistance of counsel under the well-established Sixth
Amendment standard, and one which claims she was selectively prosecuted and
harshly sentenced because of her military status. (Doc. 66 at 12.) Buck also contends
her motion is timely given her efforts to obtain counsel. Id. Although her three claims
implicate two separate triggering dates under the governing statutory framework,
see 28 U.S.C. § 2255(f), each of her claims is untimely. Accordingly, the Court should
dismiss Buck’s 28 U.S.C. § 2255 motion.
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A. Buck’s claims that plea counsels lacked authority to represent her
and that she was discriminated against at sentencing are untimely.
A one-year period of limitation applies to § 2255 motions. 28 U.S.C. § 2255(f).
Generally, the limitations period runs from “the date on which the judgment of
conviction becomes final.” Id. at (f)(1). For a petitioner who does not appeal, her
conviction becomes final upon the expiration of the period for filing a timely notice of
appeal, which is 14 days after entry of judgement. Fed. R. App. P. 4(b)(1)(A). The one-
year limitation period applies to all claims brought under § 2255, including claims
based in jurisdictional terms. Williams v. United States, 383 F. App’x 927, 929-30
(11th Cir. 2010).
The Court entered final judgment in Buck’s criminal case on January 10, 2023.
(Doc. 44.) Because she did not pursue an appeal, Buck’s conviction became final on
January 24, 2023. Accordingly, Buck had until January 24, 2024, to timely file her §
2255 motion.
Buck signed her § 2255 motion on February 10, 2024, and her sworn
declaration states that she placed her motion in the prison’s mail system on that date.
(Doc. 66 at 11.) Under the prison mailbox rule, Buck’s motion thus was filed on
February 10, 2024. See Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014).
Clearly, Buck’s claim in ground one that her attorneys lacked authority to represent
her, and her claim in ground three that she was selectively prosecuted and harshly
sentenced because of her military status, were filed beyond § 2255(f)(1)’s one-year
statute of limitations. Therefore, Buck’s claims alleged in grounds one and three are
time-barred and should be dismissed.
5
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B. Buck’s ineffective assistance of counsel claims are untimely.
In her second ground, Buck raises various claims of ineffective assistance of
counsel. Buck’s IAC claims include: she never received a copy of the Presentence
Investigation Report nor reviewed it with counsels; she never received nor was
informed of discovery; she was never able to review her plea deal; she was never
offered a safety valve; she demanded a trial; she requested counsels to appeal her
sentence; all deals between counsels and the government occurred without her
knowledge; prosecutor reassignment prior to sentencing; and that she never received
a fair chance at sentencing. (Doc. 66 at 12.) As explained herein, all but one of Buck’s
IAC claims are time-barred for the same reason that Buck’s claims alleged in grounds
one and three are untimely; her remaining IAC claim also is time-barred, albeit under
a slightly different analysis.
For purposes of determining the timeliness of her IAC claims, Buck’s most
significant allegation is her claim that plea counsels failed to appeal her sentence, as
Buck allegedly requested of them. (Doc. 66 at 12.) This IAC claim turns on a separate
triggering date for the one-year period of limitation than Buck’s other § 2255 grounds.
“A § 2255 motion based on counsel’s failure to file a requested direct appeal is
considered timely under § 2255(f)(4) if the movant files within one year of the date he
could have discovered, through the exercise of due diligence, that no appeal had been
filed.” Thirkield v. United States, 2012 U.S. Dist. LEXIS 44676, at *11 (N.D. Ga. Feb.
29, 2012), quoting Aron v. United States, 291 F.3d 708, 711 (11th Cir. 2002); see also
Beeman v. United States, 871 F.3d 1215, 1219 (11th Cir. 2017) (“The § 2255(f) statute
6
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of limitation ‘requires a claim-by-claim approach to determine timeliness.’”).
In determining whether a motion is timely under § 2255(4), a district
court must first consider whether the petitioner exercised due diligence
in discovering the facts underlying his claim. Due diligence does not
require a litigant to undertake repeated exercises in futility or to
exhaust every imaginable option, but rather to make reasonable efforts
to discover the facts underlying each claim. If the court finds that a
petitioner was not diligent in his efforts, it must proceed to consider
when the petitioner could have discovered the facts essential to his claim
had he been acting diligently. So long as the petition is filed within one
year of the date on which the facts could have been discovered with
reasonable diligence, the petition will be timely.
Thirkield, 2012 U.S. Dist. LEXIS 44676, at *11-12, quoting Tucker v. United States,
249 F. App’x 763, 764 (11th Cir. 2007).
According to Buck, “[a]fter [her] sentencing [she] asked to appeal [her] case for
13 days straight. [Her] lawyer did not acknowledge [her] until day 14 saying he saw
no reason to appeal anything.” (Doc. 66 at 12.) By her own admission, Buck asserts
she became aware plea counsels would not be appealing her conviction 14 days after
her sentencing on January 5, 2023. (Doc. 42.) Therefore, Buck had one year from
January 19, 2023, to timely file a § 2255 motion asserting ineffective assistance of
counsel for failure to directly appeal her conviction. However, Buck did not file her §
2255 motion until February 10, 2024. (Doc. 66.) Therefore, the Court should dismiss
as untimely Buck’s claim that she received ineffective assistance of counsel for failing
to directly appeal her conviction.
As to Buck’s remaining ineffective assistance of counsel arguments, the Court
should dismiss those as untimely based on the same rationale as grounds one and
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three as the triggering dates for those arguments was January 24, 2023. Therefore,
Buck had until January 24, 2024, to raise her remaining ineffective assistance of
counsel claims in a § 2255 challenge but failed to timely do so.
C. Buck is not entitled to equitable tolling of her claim for ineffective
assistance of counsel for failing to appeal her conviction.
Buck asserts her § 2255 motion is timely due to her unsuccessful attempts to
contact plea counsels for purposes of appeal and to seek court appointed counsel,
which occurred prior to Buck’s filing her § 2255 motion. (Doc. 66 at 12.) Should this
assertion be construed as an argument for equitable tolling, the assertion is without
merit and Buck fails to meet her burden of showing that she is entitled to equitable
tolling.
Equitable tolling is an extraordinary remedy meant to be applied sparingly
and is only available “when a movant untimely files because of extraordinary
circumstances that are both beyond his control and unavoidable even with diligence.”
Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005), quoting Sandvik v. United
States, 177 F.3d 1269, 1271 (11th Cir. 1999). “[A] ‘petitioner’ is ‘entitled to equitable
tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way’ and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010), quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005). The diligence required is reasonable diligence, not maximum feasible
diligence. Holland, 560 U.S. at 653; see also San Martin v. McNeil, 633 F.3d 1257,
1267 (11th Cir. 2011). In proving an “extraordinary circumstance,” a petitioner must
“show a causal connection between the alleged extraordinary circumstances and the
8
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late filing of the petition.” San Martin, 633 F.3d at 1267. The extraordinary
circumstance must be “beyond his control and unavoidable even with diligence.”
Sandvik, 177 F.3d at 1271–72. “The burden of proving circumstances that justify the
application of the equitable tolling doctrine rests squarely on the petitioner,” and
“[m]ere conclusory allegations are insufficient to raise the issue of equitable tolling.”
San Martin, 633 F.3d at 1268.
A petitioner is not entitled to equitable tolling where the petitioner fails to
exercise due diligence once discovering a direct appeal had not been filed. Thirkield,
2012 U.S. Dist. LEXIS 44676, at *16. In Thirkield, the petitioner’s counsel told
petitioner within ten days of sentencing that there was nothing to appeal and no
benefit could possibly come from pursuing an appeal, yet petitioner waited seven
months to contact his attorney to determine whether an appeal had been filed. Id. at
*13-14. The court held that this did not constitute reasonable diligence. Id. at *16.
In a similar vein, Buck has not diligently pursued her rights. Since the time
her conviction became final and the time that she supposedly learned her sentence
would not be appealed, Buck has filed four pro se motions for compassionate relief
and a motion to reduce sentence before filing the instant § 2255 challenge. (Docs. 48;
53; 55; 62; 65.) Buck failed to raise any of her substantive § 2255 claims within either
a year of her conviction becoming final or a year from when she learned her conviction
had not been appealed because counsel told her there was nothing to appeal. Clearly,
Buck had ample opportunity and sufficient familiarity with the court procedures to
timely file the instant motion prior to the one-year deadline.
9
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Buck seemingly believes her time spent attempting to retain prior counsels to
represent her followed by attempts to gain court appointed counsel should toll the
one-year deadline. However, the Eleventh Circuit has made clear that the pursuit of
private counsel does not show diligence. See Arthur v. Allen, 452 F.3d 1234, 1250–51
(11th Cir. 2006), opinion modified on reh'g, 459 F.3d 1310 (11th Cir. 2006) (efforts to
obtain private counsel did not show diligence in pursuing habeas claims); accord
Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001). Additionally, “attorney negligence
is not a basis for equitable tolling, especially when the petitioner cannot establish his
own diligence in ascertaining the federal habeas filing deadline.” Howell v. Crosby,
415 F.3d 1250, 1252 (11th Cir. 2005). Here, Buck did not reasonably pursue her rights
under a § 2255 challenge until she was denied other forms of post-conviction relief
multiple times. Therefore, she has not acted with reasonable diligence and is not
entitled to equitable tolling as her pursuit for counsel is not a recognized basis to
prove reasonable diligence.
While Buck cannot meet the first prong of the equitable tolling test, the
government also submits that Buck fails to meet the second prong as well. Buck solely
contends her untimely filing is a result of her seeking to retain or be appointed
counsel. She makes no additional showing to support tolling. (Doc. 66 at 12.) A
prisoner does not have a constitutional right to counsel when mounting a collateral
attack upon their conviction. Pennsylvania v. Finley, 481 U.S. 551, 555, (1987). Buck
provides no citation to binding or persuasive authority demonstrating that an
attempt to retain or be appointed counsel so one may pursue a § 2255 challenge
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constitutes an extraordinary circumstance for equitable tolling, nor has she alleged
facts showing the presence of “some extraordinary circumstance [that] stood in [her]
way.” Holland, 560 U.S. at 649. Because Buck’s purported pursuit of representation
does not constitute a justifiable extraordinary circumstance precluding the timely
filing of her § 2255 motion, Buck cannot benefit from equitable tolling here. All of
Buck’s claims are time-barred.
Conclusion
For the foregoing reason, this Court should dismiss Buck’s § 2255 motion.
Respectfully submitted,
JILL E. STEINBERG
UNITED STATES ATTORNEY
/s/ Joshua Kyle Davis
Joshua Kyle Davis
Assistant United States Attorney
Georgia Bar No. 575970
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CERTIFICATE OF SERVICE
This is to certify that I have on this day served all the parties in this case in
accordance with the notice of electronic filing (“NEF”) that was generated as a result
of electronic filing in this Court. In addition, I mailed a paper copy via U.S. Postal
Service to:
Dara Buck, Reg. No. 10895-510
FPC Alderson
Federal Prison Camp
Glen Ray Rd., Box A
Alderson, WV 24910
This June 5, 2024.
Respectfully submitted,
JILL E. STEINBERG
UNITED STATES ATTORNEY
/s/ Joshua Kyle Davis
Joshua Kyle Davis
Assistant United States Attorney
Georgia Bar No. 575970
Post Office Box 2017
Augusta, Georgia 30903
Telephone: (706) 724-0517
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