Opinion
CIVIL ACTION NO. 07-CV-12164-RGS.
August 8, 2008
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO VACATE SENTENCE
Randy Holley, a federal inmate proceeding pro se, brought this petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The petition asserts ineffective assistance of counsel on ten separate grounds. The United States argues that Holley's petition should be dismissed as time-barred.
BACKGROUND
On December 15, 2004, Holley pled guilty to a three-count superseding indictment charging him with three separate instances of possessing cocaine base (crack cocaine) with intent to distribute and distribution of cocaine base, each instance involving 5 grams or more (thereby triggering application of 21 U.S.C. § 841(b)(1)(B)(iii) and U.S.S.G. §§ 2D1.1(c)(5), 4B1.1, and 4B1.2). Holley admitted that he had sold (or had offered to sell) a total of 49 grams of crack cocaine to an undercover Drug Enforcement Administration Agent.
Because of three qualifying prior state convictions, Holley was classified as a career criminal offender. See U.S.S.G. § 4B1.1(a). After rejecting a motion for a downward departure, the court sentenced Holley on March 16, 2005, to 188 months imprisonment and four years of supervised release.
Holley appealed. He argued that the district court had failed to make adequate inquiry into an apparent conflict of interest between him and his attorney. See Holloway v. Arkansas, 435 U.S. 475 (1978). On June 26, 2006, the First Circuit summarily affirmed Holley's conviction and sentence. The First Circuit noted that Holley had submitted a pro se motion to substitute counsel more than a year before his guilty plea, had then withdrawn the motion, and at the plea colloquy had professed full satisfaction with his counsel. The First Circuit concluded that there were no grounds for finding a per se violation of Holley's Sixth Amendment rights. See generally United States v. Holley, No. 05-1536 (1st Cir. June 26, 2006), citing United States v. Mota-Santana, 391 F.3d 42, 46-47 (1st Cir. 2004).
The time for seeking a rehearing expired on July 10, 2006. See Fed.R.App.P. 40(a)(1). The First Circuit's mandate issued on July 17, 2006. That same day, the First Circuit docketed Holley's Motion to Reconsider Appeal, which included a certificate of service dated July 13, 2006. On August 18, 2006, the First Circuit denied Holley's Motion to Reconsider Appeal without reaching its merits. The motion sought to raise alleged wrongdoing by Holley's counsel that was "not part of the record properly presented on direct appeal." The First Circuit Court offered "no view on whether Holley could state a valid basis for collaterally attacking his conviction or sentence." In addition, on March 9, 2007, the First Circuit denied Holley's pro se Request to Recall Mandate and Reinstate Appeal.
Holley filed his § 2255 petition with this court on November 10, 2007. Holley alleges nine grounds of ineffective assistance of counsel related to his sentencing and one ground of ineffective assistance by his appellate counsel (for failing to raise trial counsel's ineffectiveness on direct appeal). On December 5, 2007, this court ordered the government to respond to the petition. On December 28, 2007, at the government's request, the court extended the response deadline to January 14, 2008. Holley filed a motion to amend his petition on January 11, 2008, which the court denied. On June 19, 2008, Holley filed a reply brief. For the following reasons, the petition will be DISMISSED.
Holley alleges to have signed and mailed his petition to the court on November 10, 2007. The court's docket, however, reflects that the petition was filed on November 16, 2007. For purposes of this order, the filing date will be deemed to have been November 10, 2007.
Holley's appellate counsel noted, but declined to raise, arguments which counsel deemed frivolous.
DISCUSSION
Motions for relief under 28 U.S.C. § 2255 must be filed within one year after the underlying judgment or conviction becomes final. See 28 U.S.C. § 2255(f)(1). The statute begins to run on a § 2255 petition when the time for seeking certiorari from the Supreme Court expires (even if certiorari is not sought). See Trenkler v. United States, 268 F.3d 16, 22 n. 5 (1st Cir. 2001);Clay v. United States, 537 U.S. 522, 525, 532 (2003); In re Smith, 436 F.3d 9, 10 n. 1 (1st Cir. 2006). The certiorari deadline in a criminal case expires 90 days from date of the entry of the judgment or order for which review is sought, except "if a petition for rehearing is timely filed in the lower court . . ., or if the lower court appropriately entertains an untimely petition for rehearing or sua sponte considers rehearing, the time to file the petition . . . runs from the date of the denial of the rehearing or, if the rehearing is granted, the subsequent entry of judgment." Sup. Ct. R. 13(3).
A collateral attack by way of a motion for a new trial is not part of a defendant's direct appeal, and therefore does not stay the certiorari deadline. See Trenkler, 268 F.3d at 20-22. The certiorari deadline is extended, however, if the Court of Appeals recalls its mandate and entertains an untimely rehearing request.See Hibbs v. Winn, 542 U.S. 88, 97-99 (2004) (certiorari deadline extended where Court of Appeals sua sponte recalled mandate and considered rehearing appeal en banc); Young v. Harper, 520 U.S. 143, 147 n. 1 (1997) (certiorari deadline extended to 90 days after denial of rehearing where Court of Appeals granted leave to file a late petition for rehearing, treated the petition as timely, and issued its mandate only after denying the petition on the merits). If the mandate is not recalled, the Court of Appeals loses jurisdiction over the appeal. See Boston and Maine Corp. v. Town of Hampton, 7 F. 3d 281, 282-283 (1st Cir. 1993). The government and Holley disagree on the date of the certiorari deadline. The appellate court's treatment of its own order is, however, dispositive in any certiorari deadline analysis. See Trenkler, 268 F.3d at 20-22; Missouri v. Jenkins, 495 U.S. 33, 47-50 (1990).
Holley urges this court to treat his Motion to Reconsider Appeal as a rehearing request. Even were it timely (which it was not), Holley's argument finds no support in the record as the First Circuit did not recall the mandate and it is not for this court to conclude otherwise. Rather, the First Circuit treated Holley's Motion to Reconsider Appeal as a collateral attack and rejected it without reaching the merits. Accordingly, the 90-day certiorari period began to run on June 26, 2006 (the date on which the First Circuit affirmed the judgment), and expired on September 24, 2006. Holley's § 2255 petition was filed on November 10, 2007, well more than a year after the certiorari deadline expired. The petition is therefore time-barred.
ORDER
For the foregoing reasons, the petition is DISMISSED with prejudice. The Clerk will now close the case.
SO ORDERED.