Opinion
No. 7:02-CR-009-R, Civil Action No. 7:04-CV-069-R.
March 15, 2005
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is a motion to vacate, set aside or correct sentence filed pursuant to 28 U.S.C. § 2255. Upon preliminary review it appeared to the Court the this action was barred by the statute of limitations. On April 8, 2004, Olson was directed to file a statement to show cause as to why this action should not be dismissed as time-barred. She filed her response on May 6, 2004.
On February 3, 2003, pursuant to her plea of guilty to the charges of bank robbery by force or violence, assault with a deadly weapon and aiding and abetting, Olson was sentenced to fifty-one months confinement to be followed by five years of supervised release. She now seeks relief from her sentence on the following grounds:
1. Olson was high on methamphetamine at the time of the robbery and cannot be held responsible for her actions;
2. she thought her co-defendant was joking about committing a robbery;
3. she had to drive the car where her co-defendant directed because she didn't know her way around town;
4. she tried to talk her co-defendant out of committing the robbery;
5. she never entered the bank or handled the shotgun used in the robbery and her sentence was, therefore, improperly enhanced under 18 U.S.C. § 924(c);
6. because she never entered the bank, Olson is guilty only of aiding and abetting;
7. her plea of guilty was involuntary;
8. the government had insufficient evidence to convict her of bank robbery;
9. the Court failed to make a determination as to the voluntariness of her guilty plea, and;
10. she was denied effective assistance of counsel.
See Motion to Vacate.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") there is a one-year limitation period during which an inmate must file a motion to vacate, set aside or correct sentence. The AEDPA provides in pertinent part:
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;
(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.
Olson's conviction became final on February 17, 2003, the last day on which she could have filed a direct appeal. See F.R.A.P. Rule 4(b)(1)(A) (notice of appeal in a criminal case must be filed within ten days after the entry of judgment). The instant motion was file-stamped on March 22, 2004. However, Olson signed the motion on March 9, 2004. Thus, the Court will assume, for the purpose of this opinion, that the instant motion was filed on March 9, 2004, three weeks after Olson's one-year limitation period expired. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (applying the "mailbox rule" to the filing of a federal habeas petition).
In her response to the Court's order to show cause as to why this motion is not time-barred, Olson states that her federal sentence did not begin until she was in the physical custody of the Bureau of Prisons which was March 24, 2003. She argues that, for limitation purposes, the date of physical custody controls rather than the date of final judgment. The Court finds this argument unpersuasive. The law is clear in that, absent a statutory exception or the application of equitable tolling, the limitation period accrues on "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255.
In her response, Olson uses the year 2002 as the year in which she began serving her sentence. However, it is clear from the record that she was convicted in 2003.
The one year statute of limitations under the AEDPA is subject to equitable tolling. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164, 121 S.Ct. 1124 (2001). However, equitable tolling applies only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474 (1999). In the case at bar, Movant has not presented any argument, facts or circumstances sufficient to warrant equitable tolling.
The Fifth Circuit has held that "neither a [litigant's] unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.) (citing Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991)), cert. denied, 528 U.S. 1007, 120 S.Ct. 504 (1999). Furthermore, "ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing." Fisher, 174 F.3d at 714 (citing Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992)).
IT IS THEREFORE ORDERED that the motion to vacate, set aside or correct sentence DISMISSED as TIME-BARRED.
IT IS FURTHER ORDERED that, to the extent Olson seeks relief under 28 U.S.C. § 1651 (the All Writs Act), or Federal Rule of Civil Procedure 60(b)(3) (4), the motion is DENIED.
Copies of this Order shall be transmitted to the parties.
SO ORDERED.