Opinion
Criminal No. 98-173-KI, Civil No. 00-1256-KI
November 30, 2000
Ernest Lee Henderson, P.O. Box 6000, Sheridan, Oregon 97378, Pro Se Petitioner
Kristine Olson, United States Attorney, District of Oregon, Michael J. Brown, Assistant United States Attorney, 1000 S.W. Third Avenue, Suite 600, Portland, Oregon 97204-2024, Attorneys for Respondent
OPINION AND ORDER
Defendant Ernest Lee Henderson was convicted of possession with intent to distribute cocaine base. Henderson was sentenced to a term of incarceration of 78 months to be followed by a four-year term of supervised release. Currently before the court is Henderson's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (#80).
Henderson objects to a condition of supervised release included in his sentence. Specifically, he objects to the condition that requires participation in an anger management treatment program.
The condition reads: "The defendant shall participate in a program of mental health counseling and/or an anger management program at the discretion of the probation officer."
If a defendant procedurally defaults a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can demonstrate either cause and actual prejudice, or that he is actually innocent. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604 (1998) (§ 2255 concerning a federal drug and gun conviction). Henderson filed no direct appeal with the Ninth Circuit in this case. Henderson has made no record concerning cause and actual prejudice and does not claim that he is actually innocent of the charge. Accordingly, he is barred from raising his claim in a Section 2255 motion.
The government also argues that Henderson's motion is barred by the one-year statute of limitations that applies to motions under Section 2255. In this case, the statute began to run on the date on which the judgment of conviction became final. See Section 2255 ("[t]he limitation period shall run from the latest of . . . the date on which the judgment of conviction becomes final;"). The written judgment for Henderson's conviction was filed on July 23, 1999. Because no appeal was filed, the judgment of conviction became final on August 2, 1999 upon the expiration of the ten-day period within which Henderson could have filed a notice of appeal. Accordingly, Henderson's Section 2255 motion would only be timely if filed no later than August 2, 2000. Because Henderson's motion was not filed until September 13, 2000, it is untimely.
Henderson's motion under § 2255 to vacate, set aside, or correct a sentence (#80) is denied for the reasons set forth above.
IT IS SO ORDERED.