Opinion
CIVIL ACTION NO. 1:00-CV-262-C
October 4, 2002
ORDER
Movant Carolyn Jozette Douglas, acting pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody, pursuant to 28 U.S.C. § 2255. Respondent United States of America filed a Motion to Dismiss and attached copies of Movant's relevant records. Movant did not file a response.
On June 16, 1998, Movant was indicted in a two-count indictment for(1) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and (2) possession of counterfeit social security cards with intent to alter in violation of 28 U.S.C. § 408(a)(7)(C). Movant pleaded guilty to count 2 pursuant to a plea bargain agreement and on October 23, 1998, she was sentenced to eight (8) months' incarceration in the Bureau of Prisons and three (3) years' supervised release. She was also ordered to pay a $100.00 special assessment and restitution in the amount of $4,189.50. Movant did not appeal her conviction and sentence.
Movant complains that she was illegally ordered to pay too much restitution because the United States Court of Appeals has determined that "a defendant. . . is only responsible for restitution for the conduct underlying the offense for which he has been convicted." United States v. Mancillas, 172 F.3d 341, 343 (5th Cir. 1999). She argues that her codefendant's case was reversed and remanded for resentencing because he had been odered to pay restitution for "damages resulting from past conduct and not the conduct underlying the offenses for which he was sentenced" United States of America v. Harold Pryce Parker, No. 99-10150, slip op. at 2 (5th Cir. 2001). Movant requests that her sentence be modified by a reduction in the amount of restitution that she was ordered to pay.
Respondent requests that the motion be dismissed because (1) Movant waived her right to file a motion under § 2255 in the plea bargain agreement; (2) Movant was not "in custody" at the time she filed the motion; and (3) the motion is time-barred.,
First; the Court finds that Movant was serving a term of supervised release when she filed her § 2255 motion. Even though a movant has completed his prison term, he remains "in custody" for purposes of habeas relief if he is serving a term of supervised release. Ojo v. I.N.S, 106 F.3d 680, 681 n. 2 (5th Cir. 1997). Thus, Movant was "in custody" for purposes of seeking habeas relief.
Second, the Court finds that there was a waiver in the Plea Bargain Agent filed with the Court on July 23, 1998. Specifically, the waiver states that
the defendant further agrees not to contest her conviction and/or sentence in any post-conviction proceecijng including but not limited to a proceeding under Title 28, United States Code, Section 2255.
There is nothing in the record to indicate that Movant fully understood her right to pursue habeas relief or the consequences of waiving such right. See United States v. Robinson, 187 F.3d 516 (5th Cir. 1999) (holding that where the district court did not explain the waiver of appeal provision at the plea colloquy, the record did not demonstrate that defendant knowingly and voluntarily waived his right to appeal).
Third, the Court finds that Movant's § 2255 motion does appear to be time-barred under the statute of limitations enacted by the Antiterrorism and Death Penalty Act of 1996 ("AEDPA").
Although the District Clerk file-marked Movant's petition"November 16, 2000, "her petition shall be deemed to be filed as of November 7, 2000, the date she signed the petition and presumably delivered it to prison officials for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) ("[A] pro se prisoner's habeas petition is filed for purposes of determining applicability of the AEDPA, when he delivers tire papers to prison authorities for mailing."). Movant's petition is, therefore, subject to review under the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326 (finding that Congress intended the AEDPA to apply to cases filed after its effective date of April 24, 1996).
The AEDPA enseted the present 28 U.S.C. § 2255 which provides, inter alia, as follows:
A 1-year period of limitation shall apply to a motion under this 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 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. Ann. § 2255 (West Supp. 2001). The one-year period "typically begins to run `on the date on which the judgment of conviction becomes final'" United States v. Thomas, 203 F.3d 350, 351 (5th Cir 2000).
Movant was convicted and sentenced on October 23, 1998, and her time for filing a direct appeal expired on November 2, 1998. See Fed.R.App.P.4(b) ("In a criminal case, a defendant shall file the notice of appeal in the district court within 10 days after the entry of either the judgment or order appealed from . . . ."). Because she failed to pursue a direct appeal, her conviction became final on November 2, 1998. See United States v. Gamble, 208 F.3d 536 (5th Cir. 2000) (noting with approval decisions from the Third and Tenth Circuits finding that a judgment of conviction becomes final when the time for seeking direct review expires). Accordingly, Movant had to file her motion under § 2255 on or before November 2, 1999, and her motion filed on November 7, 2000, is over one year late.
Movant appears to argue that she did not know that she had a claim until the United States Court of Appeals for the Fifth Circuit reversed and remanded her codefendant's conviction and sentence because the restitution was incorrectly calculated. This opinion was issued on January 27, 2000. Even if this Court does not find that Movant's claim is time-barred, the Court must find that Movant has failed to state a claim which is actionable in a motion under § 2255.
"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). "Claims falling outside these parameters that could have been raised on direct appeal, but were not, may not be raised in a collateral proceeding." United States v. Hatten, 167 F.3d 884, 887 n. 5 (5th Cir. 1999). A challenge to the restitution portion of a sentence "raises a nonconstitutional issue that could have been raised on direct appeal." Id. The Fifth Circuit has held that "restitution, in general, is a sentencing issue that should be raised on direct appeal." Id. (citing United States v. Gonzalez-Gonzalez, 995 F.2d 222 (table) (5th Cir. 1993)). See also United States v. Segler, 37 F.3d at 1137 (finding that a claim relating only to the imposition of a fine falls outside the parameters of § 2255).
Finally, the Court notes that Movant's codefendant raised his claim on direct appeal following his trial by jury and sentencing. He filed his notice of appeal on February 11, 1999, well before Movant's limitation period expired on November 2, 1999, and the case cited by Movant as authority for her argument was decided in 1999. See United States v. Mancillas, supra Even though Movant may be arguing that she could not have discovered the facts of her case prior to the expiration of the limitation period, the record refutes her argument, and there is clearly no evidence to support arguments that the Government impeded her ability to file her motion or that the Supreme Court issued a new rule of law and made it retroactive to cases on collateral review.
For these reasons, the Court finds that Movant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is time-barred and fails to state a claim actionable in a collateral proceeding under § 2255.
It is therefore ORDERED that Movant's Motion to Vacate, Set Aside, or Correct Sentence is denied and DISMISSED with prejudice. All relief not expressly granted is denied and any. pending motions are denied.