Opinion
CRIMINAL NO. 99-586, CIVIL NO. 02-9014.
July 7, 2003
MEMORANDUM AND ORDER
Presently before the Court is a styled "Application for Post Conviction Writ of Habeas Corpus and Motion to Vacate Void Judgment Under Title 28 Section 2255 of the United States Code," filed by Lance A. Viola ("Viola" or "Petitioner") on the last day of his federal supervised release. Viola was charged with two counts of income tax evasion in violation of 26 U.S.C. § 7201 and, pursuant to a written plea agreement, entered a plea of guilty to these charges. Petitioner's instant motion filed pursuant to 28 U.S.C. § 2255 alleges claims of ineffective assistance of counsel, insufficiency of the charging document to plead the essential elements of the crime of tax evasion, and lack of "personal" jurisdiction by this Court over Petitioner because, Petitioner contends, the crime of income tax evasion applies only to persons who are officers or employees of a corporation, which Petitioner alleges he is not.
Also before the Court is Petitioner's "Motion to Strike Impertinant [sic], Irrelavant [sic], Immaterial and Scandelous [sic] Remarks," filed pursuant to Federal Rule of Civil Procedure 12(f), in which Petitioner requests that this Court strike certain remarks alleged to be immaterial, impertinent and scandalous from the Government's Response in Opposition to Defendant's Section 2255 Petition.
For the reasons discussed below, Petitioner's Motion to Vacate Void Judgment pursuant to 28 U.S.C. § 2255 and Motion to Strike pursuant to Federal Rule of Civil Procedure 12(f) are DENIED.
I. BACKGROUND
On September 20, 1999, the United States Attorney's Office filed an information charging Viola with two counts of income tax evasion in violation of 26 U.S.C. § 7201. The information charged that Viola willfully evaded and failed to pay federal income taxes for the years 1992 and 1993. On October 4, 1999, pursuant to a written plea agreement, Viola entered a plea of guilty to the charges. On March 20, 2000, Viola was sentenced to serve five months imprisonment and two years supervised release. On December 11, 2002, the last day of his federal supervised release, Viola filed the instant habeas petition pursuant to 28 U.S.C. § 2255.II. DISCUSSION
• Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255
Petitioner's § 2255 motion contains essentially three claims. First, he alleges that his attorneys were ineffective in connection with their representation of him at the time that he plead guilty to two counts of income tax evasion. Specifically, Petitioner alleges that his counsel did not fully inform him of all of his constitutional rights and the consequences of pleading guilty, and negotiated an unfavorable plea agreement with the Government. Second, Petitioner alleges that the charging document in his criminal case failed to plead the essential elements of the crime of tax evasion. Finally, he alleges that this Court did not have "personal" jurisdiction over him because the crime of tax evasion applies only to an officer or employee of a corporation or partnership. This Court, however, will not pass upon the merits of his contentions, as it is clear that Petitioner's § 2255 motion must be dismissed as time-barred for his failure to comply with the statute of limitations as set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA").
AEDPA places a one-year time limit on the filing of a § 2255 motion attacking sentence:
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 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 ¶ 6.
A federal prisoner's judgment of conviction becomes final within the meaning of § 2255 on the later of the (1) the date on which the Supreme Court affirms the conviction and sentence on the merits or denies the defendant's timely filed petition for certiorari, or (2) the date on which the defendant's time for filing a timely petition for certiorari review expires. Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999); see also Clay v. United States, 123 S.Ct. 1072, 1075 (2003). If a defendant does not pursue a timely direct appeal to the court of appeals, his conviction and sentence become final, and the statute of limitation begins to run, on the date on which the time for filing such an appeal expired. Kapral, 166 F.3d at 577. In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days of the entry of judgment. Fed.R.App.P. 4(b). If no direct appeal is taken, the judgment of conviction is final 10 days after entry of the judgment on the district court's docket. See Griffith v. Kentucky, 479 U.S. 314, 321 n. 6 (1987).
In the instant case, the judgment of conviction was entered on this Court's docket on March 22, 2000. Petitioner, however, did not file a direct appeal of his conviction. Thus, the deadline for Petitioner to file a timely § 2255 motion attacking sentence expired one year from April 5, 2000. Petitioner did not file his § 2255 motion attacking sentence until December 11, 2002, over one-and-one-half years from the date that a timely petition could have been filed. Since Petitioner fails to raise any issue relating to equitable tolling of the AEDPA statute of limitations, Petitioner's § 2255 Motion is DENIED as untimely filed.
• Motion to Strike Pursuant to Federal Rule of Civil Procedure 12(f)
Petitioner also moves this Court to strike certain statements contained in the Government's Response to Petitioner's § 2255 Motion as impertinent, irrelevant, immaterial and scandalous pursuant to Federal Rule of Civil Procedure 12(f). Petitioner contends that the Government's allegations that he is a "tax protestor" and has denied his American citizenship for purposes of avoiding payment of income taxes should be stricken as impertinent, immaterial and scandalous and, further, that the term "tax protestor" is a derogatory term. Petitioner also contends that the Government's claim that he has previously filed a "frivolous" lawsuit against IRS agents investigating his case is an attempt to prejudice the Court and should be stricken as irrelevant and immaterial. Finally, Petitioner contends that the Government's response to his allegation that this Court does not have "personal" jurisdiction over him is non-responsive and intentionally misleading, and should be stricken as an insufficient defense.
Federal Rule of Civil Procedure 12(f) provides, in pertinent part, that "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f) (emphasis added). An allegation is impertinent or material if it "ha[s] no possible relationship to the controversy," and scandalous if it "reflect[s] cruelly upon the [other party's] moral character, use[s] repulsive language, or detract[s] from the dignity of the court." Lawrence v. City of Bethlehem, No. Civ. A. 97-CV-1824, 1998 U.S. Dist. LEXIS 17660, at *11-12 (quoting Khalid Bin Talal Etc. v. E.F. Hutton Co., 720 F. Supp. 671, 686 (N.D. Ill. 1989)).
A Rule 12(f) motion to strike matter from a pleading is generally disfavored. See, e.g., Miller v. Group Voyagers, Inc., 912 F. Supp. 164, 168 (E.D. Pa. 1996); North Penn Transfer, Inc. v. Victaulic Co. of America, 859 F. Supp. 154, 158 (E.D. Pa. 1994); Great West Life Assur. Co. v. Levithan, 834 F. Supp. 858, 864 (E.D. Pa. 1993). For this reason, courts have required the moving party to demonstrate prejudice in order to justify an order to strike matter from a pleading. See, e.g., Miller, 912 F. Supp. at 168; North Penn Transfer, Inc., 859 F. Supp. at 158;Great West Life Assur. Co., 834 F. Supp. at 864. Significantly, Rule 12(f) applies to pleadings, and "motions, briefs or memoranda, objections, or affidavits may not be attacked by the motion to strike." 2Moore's Federal Practice, § 12.37 (Matthew Bender 3d ed.); see also Lawrence, 1998 U.S. Dist. LEXIS 17660, at *11.
In the instant case, Petitioner inappropriately invokes the relief provided by Rule 12(f) to strike statements, not from a pleading, but from the Government's memorandum response to Petitioner's motion. In any event, Petitioner proffers only conclusory assertions that the statements complained of should be stricken, without any showing of prejudice that may befall him. Accordingly, Petitioner's Motion to Strike is DENIED.
III. CONCLUSION
For the foregoing reasons, Petitioner's "Application for Post Conviction Writ of Habeas Corpus and Motion to Vacate Void Judgment Under Title 28 Section 2255 of the United States Code" is DENIED and Petitioner's "Motion to Strike Impertinant [sic], Irrelavant [sic], Immaterial and Scandelous [sic] Remarks" is DENIED.
ORDER
AND NOW, this day of July, 2003, in consideration of the styled "Application for Post Conviction Writ of Habeas Corpus and Motion to Vacate Void Judgment Under Title 28 Section 2255 of the United States Code" (Doc. No. 14) filed by Lance A. Viola ("Petitioner"), the Government's Response (Doc. No. 22), Petitioner's Reply thereto (Doc. No. 31), and Petitioner's Memorandum of Points and Authorities (Doc. No. 23), it is ORDERED that Petitioner's § 2255 Motion is DENIED.
In consideration of Petitioner's "Motion to Strike Impertinant [sic], Irrelavant [sic], Immaterial and Scandelous [sic] Remarks" (Doc. No. 30), and the Government's response thereto (Doc. No. 32), it is ORDERED that Petitioner's Motion to Strike is DENIED.
It is FURTHER ORDERED that, because Petitioner has not made a substantial showing of a denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE.