Opinion
NO. 4:00-CR-117-A (NO. 4:03-CV-1236-A)
January 28, 2004
MEMORANDUM OPINION and ORDER
Came on to be considered the motion of pro se movant, Lewis Henry Anthony ("Anthony"), under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. Having reviewed the motion, the response of the United States, Anthony's reply to the response of the United States, Anthony's response to the court's order of January 12, 2004, the record, and applicable authorities, the court concludes that the motion should be dismissed as time-barred.
The instant motion is Anthony's second motion requesting relief under § 2255. His first § 2255 motion was filed on December 3, 2001, and was denied as premature due to the pending appeal of his conviction. The United States argues that Anthony's current motion, file marked on October 17, 2003, is time-barred.
A movant under section 2255 has a period of one year from the date his conviction becomes final to file a 2255 motion. See 28 U.S.C. § 2255 ¶ 6(1). Anthony's conviction became final on October 7. 2002. when the United States Supreme court denied his petition for writ for certiorari. See Anthony v. United States, 537 U.S. 931 (2002); United States v. Thomas, 203 F.3d 350, 355 (5th Cir. 2000). Thus, he had until October 7, 2003, to file his motion. A motion under § 2255 is deemed filed on the date a prisoner delivers it to prison officials. see United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000).
Because the certificate of service contained in Anthony's motion shows that the motion was "placed in the intitution's [sic] mailing system" on September 5, 2003, but the envelope in which the clerk received the motion on October 17, 2003, was post-marked October 15, 2003, the court allowed Anthony to submit proof from the Bureau of Prisons that his motion was timely filed. On January 27, 2004, the court received documents purporting to be proof of timely filing. The court has reviewed these documents and finds that they do not provide probative evidence that the motion was timely. Therefore,
The court ORDERS that Anthony's motion to vacate, set aside or correct sentence be, and is hereby, dismissed as time-barred.