Opinion
3:17-cr-397
07-27-2022
Charles T. Barbarotta, Petitioner-Defendant, v. United States of America, Respondent-Plaintiff.
ORDER
JEFFREY J. HELMICK, UNITED STATES DISTRICT JUDGE
Petitioner-Defendant Charles T. Barbarotta seeks an order granting his request for a subpoena to be issued to the government for a copy of the search warrant executed at his residence in December 2016. (Doc. No. 32). Barbarotta claims officers did not leave a signed copy of the search warrant at his residence and speculates his attorney did not investigate whether a search warrant was properly issued. (Id. at 1).
I previously denied Barbarotta's motion to vacate his conviction and sentence, (Doc. No. 26) and his motion for a certificate of appealability. (Doc. No. 30). Barbarotta appealed and the Sixth Circuit Court of Appeals also denied his request for a certificate of appealability after concluding Barbarotta failed to make a substantial showing of the denial of a constitutional right. (Doc. No. 31).
While Barbarotta does not explicitly state what he intends to do with any information he might obtain in response to a hypothetical subpoena, it appears likely he plans to argue - again - that his attorney provided ineffective assistance prior to his guilty plea. The problem for Barbarotta is that he has waited too long. Section 2255 contains a one-year limitations period. 28 U.S.C. § 2255(f). That one-year period begins to “run from the latest of . . . the date on which the judgment of conviction becomes final . . . or 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(f)(1), (4).
The record shows Barbarotta knew of this deadline, as he filed his first motion to vacate his sentence on November 20, 2019, exactly one year after I imposed his sentence on November 20, 2018. Moreover, Barbarotta offers no reason to think he was not aware of the purported lack of a copy of a signed search warrant immediately following the December 2016 search, much less that he remained unaware of this purported fact for over five years. Because any additional § 2255 motion is barred by the statute of limitations, I conclude there is no basis upon which to issue the subpoena Barbarotta requests. His motion is denied. (Doc. No. 32).
There is no indication Barbarotta has sought permission from the Sixth Circuit to file a second or successive motion to vacate his sentence. See, e.g., In re Embry, 831 F.3d 377, 378 (6th Cir. 2016).
So Ordered.