Opinion
Case No. 99-CV-76229-DT, Criminal Case No. 93-CR-80259-DT.
June 30, 2000
MEMORANDUM PINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255
I. Introduction
On October 4, 1994, Petitioner Arnold Fawley entered a plea of guilty to Count I of a two-count Indictment, conspiracy to export marijuana, in violation of 21 U.S.C. § 963. On October 4, 1994, a Judgment and Commitment Order was entered by the Honorable George E. Woods, sentencing Petitioner to 105 months of incarceration and 3 years supervised release and dismissing Count II of the Indictment. Petitioner filed a direct appeal of his sentence to the Sixth Circuit Court of Appeals on October 13, 1994. On December 27, 1994, Petitioner moved to dismiss his appeal which was granted by the Sixth Circuit on December 29, 1994. On December 8, 1999, Petitioner filed the instant motion to set aside, correct, or vacate his sentence pursuant to 28 U.S.C. § 2255. It is noted that Petitioner previously filed a Writ of Habeas Corpus under 28 U.S.C. § 2241, initially on August 20, 1999, which was dismissed by this Court on October 29, 1999 without prejudice for lack of jurisdiction.
Respondent has filed a motion to dismiss the petition for failure to comply with the one-year limitations period applicable to habeas corpus petitions and motions to vacate a sentence under 28 U.S.C. § 2255. For the reasons set forth below, the motion to dismiss is granted.
II. Analysis
Respondent has filed a motion to dismiss the Motion to Vacate Sentence under 28 U.S.C. § 2255 on the ground that the petition is untimely. The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), applies to all habeas petitions and motions under § 2255 filed after the effective date of the Act, April 24, 1996. The instant motion was filed on December 8, 1999. The provisions of the AEDPA, including the limitations period for filing an application for habeas corpus relief, apply to Petitioner's application. Lindh v. Murphy, 521 U.S. 320, 337 (1997).
Among other amendments, the AEDPA amended 28 U.S.C. § 2255 to include a one-year limitations period from the date a final Judgment is entered within which § 2255 motions must be filed. 28 U.S.C. § 2255. The revised statute provides as follows:
A 1-year period of limitation shall apply to an application for a motion under section. The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255.
Where a prisoners s conviction became final prior to the effective date of the AEDPA, the prisoner is permitted one-year from the AEDPA's effective date to file a petition for habeas corpus relief in federal court. Austin v. Mitchell, 200 F.3d 391 (6th Cir. 1999). In the pending case, Petitioner's conviction became final before the AEDPA became effective on April 24, 1996. Therefore, in order to comply with the one-year limitations period, Petitioner was required to file his habeas corpus petition by April 24, 1997. The pending petition was not filed until December 8, 1999, well beyond the one-year limitations period. Even if the Court were to consider Petitioner's previous § 2241 habeas petition as a § 2255 motion, because the § 2241 habeas petition was initially filed on August 20, 1999, that petition was also filed beyond the one-year limitations period.
Petitioner fails to allege that there existed any impediment to his filing a timely motion under § 2255 or that his claim involves a newly-recognized constitutional right or newly-discovered facts. Petitioner has failed to present any exceptional circumstances which would warrant equitable tolling of the limitations period. Petitioner's § 2255 motion is barred by the one-year statute of limitations.
III. Conclusion
The Court concludes that Petitioner failed to file his motion under 28 U.S.C. § 2255 within the one-year limitations period established by 28 U.S.C. § 2255.
Accordingly,
IT IS ORDERED that Respondent's Motion to Dismiss (Docket No. 58, filed May 18, 2000, Criminal Case No. 93-80259) is GRANTED.
IT IS FURTHER ORDERED that Petitioner's 28 U.S.C. § 2255 Motion to Vacate Sentence (Docket No. 1, filed December 8, 1999, Case No. 99-76229 and Docket No. 54, filed December 8, 1999, Criminal Case No. 93-80259) is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Petitioner's Motion to Waive Payment of the Copy and Transcript Fees (Docket No. 51, filed April 28, 1999, Criminal Case No. 93-80259) is DENIED.
IT IS FURTHER ORDERED that Petitioner's Motion for Immediate Release from Federal Custody on a Personal Recognizance Bond (Docket No. 52, filed October 22, 1999, Criminal Case No. 93-80259) is DENIED.
IT IS FURTHER ORDERED that Petitioner's Motion for Enlargement of Federal Prisoner pursuant to Fed.R.App.P. Rule 23 (Docket No. 55, filed December 8, 1999, Criminal Case No. 93-80259) is DENIED.