Opinion
CR No. 97-75-FR, Civil No. 00-728-FR
September 14, 2000
Kristine Olson, United States Attorney and Howard P. Stewart, Senior Litigation Counsel, Washington, D.C., Attorneys for Plaintiff.
John L. Dilworth, Jr., Sheridan, OR, Defendant Pro Se.
OPINION AND ORDER
The matters before the court are 1) the motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (#97); 2) the motion to extend time to file first 28 U.S.C. § 2255 petition (#95); and 3) the ex parte motion for disclosure of the character of this United States District Court (#96) filed by the defendant, John L. Dilworth, Jr.
BACKGROUND
A jury found defendant Dilworth guilty of violating the Federal Water Pollution Control Act and making false statements to conceal his violations. See 33 U.S.C. § 1319(c)(2)(A); 18 U.S.C. § 1001. On November 18, 1997, the district court sentenced defendant Dilworth to 36 months of imprisonment.
Defendant Dilworth filed an appeal from his conviction and the sentence imposed. On October 1, 1998, the United States Court of Appeals for the Ninth Circuit affirmed Dilworth's conviction and the sentence imposed in an unpublished memorandum opinion.
On May 30, 2000, defendant Dilworth filed this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed, along with a motion to extend the time to file a first 28 U.S.C. § 2255 petition and an ex parte motion for disclosure of the character of this United States District Court.
Defendant Dilworth contends that he was denied his right to the effective assistance of counsel. Defendant Dilworth contends that his counsel was deficient in the following manner: 1) in failing to challenge the character, style and kind of the court to disclose its jurisdiction; 2) in failing to challenge the creation of the United States as plaintiff and Mr. Dilworth personally as defendant; 3) in failing to raise or challenge the self-evident and self-declaring defects in the government's charging instrument; 4) in failing to challenge the prosecutor's misconduct and abuse of discretion in allowing the prosecutor to bring this sham before the court; 5) in failing to present in the direct appeal the four-level increase for a discharge in violation of a state permit; and 6) cumulatively, in failing to challenge and preserve for direct appeal the five grounds stated above.
The government contends that defendant Dilworth's motion under 28 U.S.C. § 2255 should be denied because it was not filed within the one-year period required by the statute. In addition, the government contends that the grounds set forth by defendant Dilworth in support of his motion lack merit. The government contends that federal jurisdiction properly extends to the prosecution of defendant Dilworth under the criminal penalties provided in the Clean Water Act, 33 U.S.C. § 1319(c)(2)(A).
Defendant Dilworth contends that the time limitation set forth in 28 U.S.C. § 2255 does not apply to challenges made to the subject matter jurisdiction of the court.
ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1966, which amended the provision of 28 U.S.C. § 2255, provides, in part, that "[a] 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of — (1) the date on which the judgment of conviction becomes final; . . . or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence."
A conviction becomes final and the statute of limitations under 28 U.S.C. § 2255 begins to run when the time for filing a writ of certiorari expires. United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir. 2000). Supreme Court Rule 13 provides that a petition for certiorari may be filed within 90 days after the entry of judgment.
The United States Court of Appeals for the Ninth Circuit entered its mandate affirming defendant Dilworth's conviction and sentence on October 1, 1998. Defendant Dilworth had until December 30, 1998 to file a writ of certiorari. Defendant Dilworth had until December 29, 1999 to file a timely motion under 28 U.S.C. § 2255(1). Defendant Dilworth's motion for relief under 28 U.S.C. § 2255 was filed on May 30, 2000 and was not filed within the one-year period as set forth in 28 U.S.C. § 2255(1). There are no new facts which could not have been discovered within the one-year period through the exercise of due diligence under 28 U.S.C. § 2255(4). The motion for relief under 28 U.S.C. § 2255 was not timely filed.
This court had subject matter jurisdiction over the charges filed against defendant Dilworth. 18 U.S.C. § 3231 provides that "[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." The jury found defendant Dilworth guilty of violating two criminal laws of the United States. See 33 U.S.C. § 1319(c)(2)(A); 18 U.S.C. § 1001. This district court has jurisdiction pursuant to 18 U.S.C. § 3231.
Defendant Dilworth contends that the criminal penalties provided in 33 U.S.C. § 1319(c)(2)(A) cannot be applied to alleged prior violations relying upon Steel Co. v. Citizens For a Better Env't, 523 U.S. ___, 118 S.Ct. 1003 (1998), and Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64 (1987). These cases involve civil actions brought by citizens seeking injunctive relief and the imposition of civil penalties against persons alleged to be in violation of certain environmental statutes. There is no requirement under 33 U.S.C. § 1319 (c)(2)(A) that the government must prove a continuing violation.
CONCLUSION
The motion for relief under 28 U.S.C. § 2255 filed by defendant Dilworth was not timely filed. This court had subject matter jurisdiction over the charges filed against defendant Dilworth. There are no facts in this case which require a hearing.
IT IS HEREBY ORDERED that the motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (#97); the motion to extend time to file first 28 U.S.C. § 2255 petition (#95); and the ex parte motion for disclosure of the character of this United States District Court (#96) filed by defendant Dilworth are DENIED.