Opinion
Nos. 3-98-CR-0242-R(01), 3-04-CV-2607-R.
March 4, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Larry Gene Powell, appearing pro se, has filed a motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the motion should be dismissed on limitations grounds.
I.
Defendant pled guilty to use of interstate commerce facilities in connection with a murder-for-hire in violation of 18 U.S.C. § 1958. Punishment was assessed at 120 months confinement followed by supervised release for a period of three years. His appeal was dismissed as frivolous. United States v. Powell, No. 99-10407 (5th Cir. May 3, 2000). Defendant now seeks post-conviction relief under 28 U.S.C. § 2255.
II.
In multiple grounds for relief, defendant contends that: (1) there was no nexus to interstate commerce which deprived the district court of subject matter jurisdiction over the offense; (2) the government manufactured the evidence against him; (3) he was denied equal protection under the laws; (4) his conviction was based on evidence obtained from an illegal wiretrap; (5) he was denied the right to confrontation; (6) he received ineffective assistance of counsel; and (7) his sentence was enhanced by factors not alleged in the indictment or determined by a jury as required by Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
By order dated December 22, 2004, the court sua sponte questioned whether this case was subject to dismissal on limitations grounds. Defendant was invited to address the limitations issue in a written reply by February 24, 2005. No reply has been filed. The court now determines that this case is time-barred and should be summarily dismissed.
On March 2, 2005, defendant filed a supplement to his section 2255 motion, a memorandum of law in support of his claims, and a pleading entitled "Motion to Limit." However, none of these filings address the limitations issue.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final. 28 U.S.C. § 2255. However, the one-year limitations period is subject to equitable tolling in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999).
The statute provides that the limitations period shall run from the latest of —
(A) the date on which the judgment of conviction becomes final;
(B) 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 filing by such governmental action;
(C) the date on which the right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) 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.