Opinion
No. 3:01-CR-375-01.
October 12, 2006
MEMORANDUM
Presently before the Court is Defendant Isaac Garfield's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 217.) Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts instructs that if "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." In such instances, an evidentiary hearing is not required. Gov't of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year period of limitation for filing a motion to vacate a sentence pursuant to section 2255. That period of limitation shall run from the latest of:
(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) 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; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255. Where the movant has not filed a direct appeal to the relevant court of appeals, the judgment of conviction becomes final ten (10) days following entry of the judgment. Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999); see also FED. R. APP. P. 4(b)(1)(A).
In the instant matter, the Court entered judgment on February 18, 2004. (Doc. 204.) Defendant did not file a direct appeal. Therefore, Defendant had until February 28, 2005, to file a motion pursuant to section 2255. See FED. R. APP. P. 4(b)(1)(A); FED. R. APP. P. 26. However, Defendant waited until July 6, 2005. (Doc. 217.) Clearly, Defendant failed to file the instant motion within the period prescribed by section 2255(1).
Defendant does not allege or offer evidence that he was prevented from filing the instant motion because of some government impediment; nor does Defendant offer argument or evidence that he recently discovered facts pertaining to his motion which might justify his delay in filing his section 2255 motion.
Defendant does contend that his sentence violates the Sixth Amendment because of the recent Booker decision, possibly raising an argument for the application of section 2255(3), which tolls the limitation period until the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review. However, the United States Court of Appeals for the Third Circuit has held that the rule announced in Booker does not apply retroactively to cases on collateral review. Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005). Consequently, Defendant's motion is not justified on the basis of a newly recognized right by the Supreme Court, which was made retroactively applicable to cases on collateral review. 28 U.S.C. § 2255. In light of the foregoing, the Court finds that Defendant's motion is untimely and must be dismissed.
An appropriate Order follows.