Opinion
Case No. 99-20046-01-JWL, 00-20052-01-JWL, 00-20053-01-JWL, 00-20054-01-JWL.
February 27, 2002
MEMORANDUM ORDER
This matter comes before the court on defendant Housh's motion for an extension of time to file a § 2255 motion (Doc. 54). In his motion for an extension of time, defendant asserts that he is entitled to equitable tolling because, after being convicted, his attorney did not tell him he could file a direct appeal or a § 2255 motion. The motion for extension of time is dismissed because the court concludes that the question of equitable tolling is not ripe until defendant actually files a § 2255 motion.
Nevertheless, the court feels constrained to point the defendant to the case of United States v. Lacey, 1998 WL 777067 (10th Cir. 1998), which appears to be directly on point and which found that equitable tolling was not warranted based on the conduct of his former attorney.
On September 11, 2000, defendant was sentenced in this case. On September 20, 2000, entry of judgment was made. Pursuant to Fed.R.Civ.P. 4(b)(1), a defendant has 10 days from the entry of judgment to file an appeal. Here, defendant had until September 30, 2000 to file an appeal. He did not file a direct appeal, meaning that the judgment became final on September 30, 2000. Griffith v. Kentucky, 479 U.S. 314, 321 n. 6 (1987) (defining a "final judgment" as "a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied").
The Anti-terrorism and Effective Death Penalty Act (AEDPA) provides that a habeas petition must be brought within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(1). It is well established in the Tenth Circuit that the one-year limitation period is not jurisdictional, but instead, is in the nature of a statute of limitations and subject to equitable tolling. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), cert. denied, 525 U.S. 891, 1998 WL 407280 (Oct. 5, 1998). "Equitable tolling is only available when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control." Moore v. Gibson, 250 F.3d 1295, 1299 (10th Cir. 2001) (quotations omitted).
Here, defendant did not file a § 2255 motion; instead, he concedes that the limitations period to file such a motion has run and seeks equitable tolling to extend the limitations period. The Tenth Circuit has held that "the question of equitable tolling is ripe for adjudication only when a § 2255 motion has actually been filed and the statute of limitations period has been raised by the respondent or the court sua sponte." United States v. Verners, 2001 WL 811719, at *2 (10th Cir. July 17, 2001). The court added: "It is only at this point that the record will be sufficient to determine whether the requisite 'extraordinary circumstances' are present to the magnitude necessary to merit equitable tolling." Id. Because the defendant has not filed a § 2255 motion, the defendant's motion is not ripe for review and must be dismissed.
Contrary to defendant's belief, the government points out that the limitations period may not have run at the time defendant submitted his motion for an extension of time.
Although both Verners and Lacey are unpublished Tenth Circuit decisions, Rule 36.3 permits citations to unpublished decisions when they have "persuasive value with respect to a material issue that has not been addressed in a published opinion" and "would assist the court in its disposition." 10th Cir.R. 36.3(B)(1) and (2).
IT IS THEREFORE ORDERED BY THE COURT that defendant's motion for an extension of time (Doc. 54) is dismissed.
IT IS SO ORDERED.