Opinion
14-CR-0604-1 (VB) 21-CV-9750 (VB)
11-29-2021
TAKIEM EWING, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER
VINCENT L. BRICCETTI, UNITED STATES DISTRICT JUDGE
Takiom Ewing (“Ewing”), currently incarcerated at U.S.P. McCreary in Pine Knot, Kentucky, pleaded guilty before this Court to two counts of carjacking resulting in death and one count of possessing and providing contraband in prison, for which he was sentenced to 384 months' incarceration. See United States v. Ewing, ECF 7:14-CR-0604-l, 229 (VB) (S.D.N.Y. June 20, 2019). Ewing did not appeal his judgment of conviction.
In an undated submission, received by the court's Clerk's Office on November 22, 2021, Ewing asks that the court provide him with a 28 U.S.C. § 2255 motion form and instructions for completing the form. (ECF 1.) As set forth below, the Court grants Ewing 60 days to file a formal motion under § 2255, setting forth his grounds for relief and addressing the timeliness of his motion.
STANDARD OF REVIEW
A prisoner in federal custody may bring a motion under 28 U.S.C. § 2255 attacking his conviction or sentence on the grounds that it violates the Constitution or United States law, was imposed without jurisdiction, exceeds the maximum penalty, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. Under Rule 4(b) of the Rules Governing § 2255 Proceedings, the Court has the authority to review and deny a § 2255 motion before directing an answer “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rules Governing § 2255 Proceedings, Rule 4(b); see Acosta v. Nunez, 221 F.3d 117, 123 (2d Cir. 2000). The Court is obliged, however, to construe pro se pleadings liberally and interpret them “to raise the strongest arguments they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); see Green v. United States, 260 F, 3d 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not exempt “from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (citing Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983))., DISCUSSION
A federal prisoner seeking relief under § 2255 must generally file a motion within one year from the latest of four benchmark dates, that is, when: (1) the judgment of conviction becomes final; (2) a government-created impediment to making such a motion is removed; (3) the right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on collateral review; or (4) the facts supporting the claim(s) could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2255(f).
Here, judgment was entered on June 20, 2019, and Ewing's conviction became final on the date his time to file a notice of appeal expired, that is, on July 5, 2019. See Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (holding that “an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires”); Fed. R. App. P. 4(b)(1)(A)(i) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days ... of... the entry of either the judgment or the order being appealed ....”). The statute of limitations to file a § 2255 motion commenced the following day and expired one year later, on July 6, 2020. Because Ewing has not filed a § 2255 motion, the Court concludes that any motion he may eventually file would be untimely. Thus, should Ewing file a § 2255 motion, the Court is likely to deny it as untimely unless Ewing can show that extraordinary circumstances warrant the tolling of the limitation period for equitable reasons. See Green, 260 F.3d at 82 (holding that extraordinary circumstances may warrant tolling the statute of limitations for § 2255 motions). If applicable, Ewing should therefore allege any facts showing that he has been pursuing his rights diligently and that some extraordinary circumstance prevented him from submitting his motion sooner.
The last day for Ewing to have filed a notice of appeal fell on July 4, 2019, a legal holiday. Thus, under Fed.R.Civ.P. 6(a)(1)(C), “the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.” Id.
CONCLUSION
The Court grants Ewing 60 days from the date of this order-which is January 28, 2022-to file a motion under 28 U.S.C. § 2255, in which he should (1) present all his grounds for relief and any facts in support of each ground; and (2) provide any additional facts about his inability to file the motion sooner. The motion must be submitted to this Court's Pro Se Intake Unit within sixty days of the date of this order, be captioned as a “Motion” and bear the same docket number as this order. A Motion Under 28 U.S.C. § 2255 form is attached to this order, l which Ewing should complete as specified above. The Court will review the motion for substantive sufficiency and issue any necessary orders. An order to answer is not required at this time. .
Because Ewing has not at this time made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to mail a copy of this order and its attachment to Ewing, at the following address:
Takiem Ewing, Register No. 71372-054
Unit B1-135
USP McCreary
U.S. Penitentiary
P.O. Box 3000
Pine Knot, KY 42635
SO ORDERED.