Opinion
Nos. 1:04CV952, 2:96CR95-1.
February 25, 2005
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner George David Langley, Jr., a federal prisoner, has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. A jury found Petitioner guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Docket nos. 1, 21) The court sentenced him to 181 months in prison. (Docket no. 32) Judgment was entered on October 18, 1996. (Id.) Petitioner appealed, but the Fourth Circuit affirmed his conviction. (Docket no. 44) The Supreme Court denied certiorari on June 15, 1998. (Docket no. 46) Petitioner then filed this section 2255 motion. (Docket no. 51) Respondent has moved to dismiss the motion because it is time-barred. (Docket no. 56) Petitioner has responded to the motion to dismiss. (Docket no. 58) The matter is now ready for ruling.
DISCUSSION
Petitioner raises two grounds for relief. He contends that his conviction and sentence were unlawfully obtained using facts not admitted by him or submitted to the jury. (Docket no. 51 at 5) Petitioner also contends that counsel rendered ineffective assistance but fails to cite any specific acts of counsel. (Id.) The government requests dismissal on the ground that the motion was filed outside of the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132 ("AEDPA"). 28 U.S.C. § 2255. The AEDPA amendments apply to all Section 2255 motions filed after its effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320 (1997).
A Section 2255 motion is filed by a prisoner when the motion is delivered to prison authorities for mailing. Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999).
Interpretations of 28 U.S.C. §§ 2244(d)(1) and 2255 have equal applicability to one another. Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). The limitation period runs from the date when the judgment of conviction became final. Where a petitioner does not appeal his conviction, it becomes final when the ten-day notice of appeal period expires. See Fed.R.App.P. 4(b); Clay v. United States, 537 U.S. 522 (2003). Where a petitioner files an appeal, finality has been construed to mean when the petitioner may no longer seek further review because of (1) the denial of a petition for certiorari to the United States Supreme Court; or, (2) the expiration of the time for seeking such review. Clay, 537 U.S. 522. A petition for a writ of certiorari is timely filed within 90 days after entry of judgment by the court of appeals. Sup. Ct. R. 13(1). If a petition for rehearing is timely filed in the court of appeals, the time to file the petition for a writ of certiorari runs from the date of the denial of the petition for rehearing, or if granted, the subsequent entry of judgment. Id. R. 13(3).
Petitioner's conviction became final when the Supreme Court denied certiorari on June 15, 1998. Clay, 537 U.S. 522. Under subsection one of section 2255, his filing deadline expired one year from that date, or on June 15, 1999. Petitioner's section 2255 motion is dated August 27, 2004, and it was received by the Clerk on September 1, 2004. (Docket no. 51) It was not timely filed under subsection one.
Petitioner had submitted a motion to correct sentence dated July 12, 2004, which was dismissed without prejudice. (Docket no. 49) This document was filed outside of the one-year period also.
Only if another subsection of section 2255 gives Petitioner more time to file his motion could it be timely filed. Subsection two requires an impediment to filing the motion created by an unlawful governmental action, and there is no allegation of such an action. Subsection two therefore does not apply. Subsection four allows the limitation period to run from the date on which the facts supporting the claim presented could have been discovered through the exercise of due diligence. All of the facts underlying Petitioner's claims could have been discovered by the time of the denial of certiorari. Subsection four does not give Petitioner a longer period to file his motion.
Subsection three allows the limitation period to start running on 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. Petitioner relies on his first ground for relief upon Blakely v. Washington, 124 S.Ct. 2531 (2004). (Docket no. 51, attached memo.) The Supreme Court has now decided that although the reasoning of Blakely does apply to the federal sentencing guidelines, this decision is not retroactively applicable in collateral proceedings such as this case. See United States v. Booker, 125 S.Ct. 738, 769 (2005) (decision to be applied only to cases not yet final when decision issued); see also Schriro v. Summerlin, 124 S.Ct. 2519 (2004) (Ring and a fortiori Apprendi do not apply retroactively on habeas review). Therefore neither Blakely norBooker gives Petitioner a longer limitation period. Subsection three does not apply.
In his response, Petitioner contends that his motion should be considered timely filed because he was in state custody until July 1999 and because he did not discover until April 2000 that his petition for writ of certiorari had been denied. (Docket no. 58 at 2-3) Even if these two allegations were established and affected the running of the limitation period, which the court does not find, at least four years passed after these events before Petitioner submitted his defective "motion to correct sentence." (Docket no. 49) These allegations therefore would not cause his motion to be timely filed.
Subsection one of section 2255 controls Petitioner's limitation period, and under that subsection Petitioner's motion was not timely filed; therefore, the motion should be dismissed. IT IS THEREFORE RECOMMENDED that Respondent's motion to dismiss (docket no. 56) be GRANTED, and that Petitioner's motion to vacate, set aside or correct sentence (docket no. 51) be DENIED and that Judgment be entered dismissing this action.