Opinion
CASE NO. 6:14-cv-2119-Orl-31TBS
01-05-2015
WERAWAT ISARAPHANICH, Petitioner, v. UNITED STATES OF AMERICA, Respondents.
(6:13-cr-226-Orl-31TBS) ORDER
This case is before the Court on Petitioner's letter, construed as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 1). In his letter, Petitioner requests an extension of time to file a § 2255 motion. Id.
"Federal courts have no authority to extend the one-year limitation period where no § 2255 petition has been filed. . . ." Robinson v. United States, No. 10-104-CG-C, 2010 WL 1382764, at *1 (S.D. Ala. Mar. 3, 2010) (citing Green v. United States, 260 F.3d 78, 83 (2nd Cir. 2001); United States v. Leon, 203 F.3d 162, 164 (2nd Cir. 2000)); see also United States v. Harris, 304 F. App'x 223 (4th Cir. 2008) (affirming district court's denial of motion to extend time to file a § 2255 motion based on lack of jurisdiction to consider the motion because the petitioner had not filed a § 2255 motion and his motion for an extension of time to file did not raise any potential grounds for relief).
Nevertheless, "[w]here a motion, nominally seeking an extension of time, contains allegations sufficient to support a claim under section 2255, a district court is empowered . . . to treat that motion as a substantive motion for relief under section 2255." Green, 260 F.3d at 83. Petitioner's motion to extend time, however, does not contain any allegation sufficient to support any § 2255 claim. Consequently, the Court cannot recharacterize Petitioner's motion for extension of time as the initiation of a § 2255 action. Therefore the instant case is subject to dismissal.
Accordingly, it is now ORDERED AND ADJUDGED:
1. Petitioner's motion (Doc. No. 1) is DENIED. This case is hereby DISMISSED without prejudice.
2. The Clerk of the Court is directed to mail Petitioner a standard § 2255 form along with this Order and close the case.
Petitioner is advised that "[t]he Antiterrorism and Effective Death Penalty Act ("AEDPA") creates a strict one-year limitation for § 2255 petitioners. . . ," United States v. Hunter, No. 08-53-WS-M, 2010 WL 1994876, at * 2 (S.D. Ala. May 18, 2010), and the closing of the instant case will not excuse him from the one-year period of limitation for filing a § 2255 motion. See 28 U.S.C. § 2255.
3. The Clerk of Court is directed to file a copy of this Order in criminal case 6:13-cr-226-Orl-31TBS and terminate the pending motion to vacate, set aside, or correct sentence in that case (Criminal Case Doc. No. 46).
4. The Clerk of Court is directed to send Petitioner a § 2255 form.
DONE AND ORDERED in Orlando, Florida, this 5th day of January, 2015.
/s/_________
GREGORY A. PRESNELL
UNITED STATES DISTRICT JUDGE
Copies to:
OrlP-3 1/5
Michael P. Clements
Counsel of Record