Opinion
02 Civ. 10193 (MGC)
January 23, 2003
MEMORANDUM OPINION
Petitioner moves under 28 U.S.C. § 2255 to vacate his sentence. Motions brought under 28 U.S.C. § 2255 are subject to a one-year period of limitation, which generally runs from the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255 ¶ 6(1). The judgment against petitioner was entered on October 20, 2000. There was no appeal. Therefore the judgment of conviction became final 10 days later, on October 30, 2000. See Fed.R.App.P. 4(b). Petitioner's motion under 28 U.S.C. § 2255 was received on December 2, 2002 in an envelope postmarked November 29, 2002, clearly more than one year after the judgment of conviction became final.
Petitioner argues that his petition falls within an exception to the general period of limitation, under which the one-year period of limitation runs from:
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.28 U.S.C. § 2255 ¶ 6(3).
Petitioner argues that Ring v. Arizona, 536 U.S. ___, 122 S.Ct. 2428, 153 L.Ed.2d 556, decided by the Supreme Court on June 24, 2002, recognized a new right, which he now asserts. An examination of Ring shows that it was an application of Apprendi v. New Jersey, 530 U.S. 466 (2000), and did not itself recognize a new right. Accordingly, the petition does not come within the exception to the period of limitation set out above, and it is not necessary to reach the issue of retroactivity.
For the foregoing reasons, this petition is dismissed as untimely.
SO ORDERED.