Opinion
02 Civ. 1851 (LAK); (S3 98 Crim. 0370 (LAK))
April 3, 2002
ORDER
On July 31, 1998, movant pled guilty to one count of conspiracy to distribute and possess with intent to distribute 5 kilograms or more of mixtures and substances containing detectable amounts of cocaine, in violation of Sections 812, 841(a)(1) and 841(b)(1)(a) of Title 21 of the United States Code. Pursuant to Section 841(b)(1)(a), he was sentenced to151 months in prison. Movant appealed, and the Second Circuit affirmed the judgment of conviction on January 4, 2000. See Docket Item 55, No. 98 Cr. 370 (LAK). He did not file a petition for a writ of certiorari.
Movant now has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. He assigns three grounds for relief, all of which derive from movant's interpretation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically, movant claims that (1) the Court lacked jurisdiction to sentence him pursuant to 21 U.S.C. § 841(b)(1)(a) because the indictment failed to allege a specific drug quantity; (2) his plea was defective because the magistrate judge failed to instruct him that drug quantity was an essential element of the offense that the government would have to prove beyond a reasonable doubt; and (3) Section 841(a)(1) is void for vagueness.
Rule 4(b) of the Rules Governing Section 2255 Proceedings obliges this Court to examine the petition and, "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief," to "make an order for its summary dismissal." The present motion must be dismissed as untimely.
A one-year statute of limitations applies to motions under Section 2255. The limitations period runs 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. It is apparent that the limitations question in the present case implicates only numbers 1 and 3 above, as movant alleges neither discovery of new facts nor governmental action impeding his ability to make a motion.
Giving movant the benefit of the doubt, he conveyed the present motion to prison officials no earlier than January 31, 2002. See Pet., at 1 (date of letter brief submitted as Section 2255 motion). At the latest, movant's judgment of conviction became final on April 3, 2000, the date on which his time to file a petition for certiorari expired given that his conviction was affirmed on January 4, 2000. See, e.g., Kaufmann v. United States, 282 F.3d 1336 (11th Cir. 2002); Zhang v. United States, 01 Civ. 2591 (DAB), 2002 WL 392295, at *2 (S.D.N.Y. Mar. 13, 2002) (noting that the Second Circuit has yet to decide when a conviction is final for purposes of a Section 2255 motion, but assuming conviction becomes final 90 days after judgment of conviction affirmed); Moore v. White, No. 01 Civ. 117, 2002 WL 342695, at *2 (S.D.N.Y. Mar. 4, 2002) (calculating date upon which conviction became final from date Second Circuit affirmed judgment of conviction, but noting that motion would be untimely even giving movant benefit of 90 day time period for filing certiorari). Thus, this motion is untimely if the limitations period ran from the date movant's "judgment of conviction bec[ame] final." 28 U.S.C. § 2255.
The year 2000 was a leap year. See Astronomy Information Service of the Royal O b s e r v a t o r y G r e e n w i c h, L e a p Y e a r s, a t http://www.rog.nmm.ac.uk/leaflets/leapyear/leapyear.html (last modified Jan. 7, 2002).
Movant fares no better by measuring the limitations period from the date when the Supreme Court recognized the new rule of constitutional law upon which this motion is based. Even assuming that the Supreme Court's holding in Apprendi applies retroactively to cases on collateral review, the Court decided Apprendi on June 26, 2000, more than one year before movant conveyed the present motion to prison officials. Therefore, this motion is untimely if the limitations period ran from the date the Supreme Court recognized the "right asserted." 28 U.S.C. § 2255.
Although the Second Circuit has not resolved the issue, Forbes v. United States, 262 F.3d 143, 146 (2d Cir. 2001), the weight of authority from other circuits and lower courts suggests that the new constitutional rule set forth in Apprendi does not apply retroactively to cases on collateral review. E.g., United States v. Moss, 252 F.3d 993, 997-1001 (8th Cir. 2001), cert. denied, 122 S.Ct. 848 (2002); United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir.), cert. denied, 122 S.Ct. 573 (2001); Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000); In re Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000); Saldarriaga v. United States, No. 99 Civ. 4487 (WK), 2002 WL 449651, at *5-6 (S.D.N.Y. Mar. 21, 2002); Garcia v. United States, No. 01 Civ. 7188, 2002 WL 42888, at *1 (S.D.N.Y. Jan. 11, 2002).
Because movant suggests no other, later date from which to calculate the running of the limitations period, the Court must conclude that the present motion is untimely. Accordingly, the motion for relief under Section 2255 is denied and dismissed. A certificate of appealability is denied and the Court certifies that any appeal herefrom would not be taken in good faith for purposes of 28 U.S.C. § 1915(a)(3).
SO ORDERED.