46 F. 3d 1146 - United States v. D Bogard

MEMORANDUM**

Federal prisoner Larry Donnell Bogard appeals pro se the district court's denial of his 28 U.S.C. Sec. 2255 motion to vacate his 1980 bank robbery conviction. Bogard alleged that his trial counsel coerced him into entering his guilty plea and then refused to permit him to withdraw the plea, as well as committing other procedural errors. Bogard filed his habeas petition thirteen years after his guilty plea, and the district court concluded that Bogard's habeas petition was barred by Rule 9(a) of the Rules Governing Section 2255 cases in the United States District Courts.

A district court may dismiss under Rule 9(a) where the "government has been prejudiced in its ability to respond to the motion by delay in its filing unless the movant shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the government occurred." In the thirteen years since Bogard's conviction, the United States Attorney's Office destroyed the files pertaining to the guilty plea, the Assistant United States Attorney who prosecuted the cases did not personally maintain records of the case nor specifically recall the guilty plea or sentencing, and Bogard's counsel had no specific recollection of the case. Consequently, the government was prejudiced by Bogard's delay, and Bogard has failed to show any reason to justify the delay in raising his claims. Accordingly, the district court's dismissal is