Opinion
Civil Action No. 99-252, Section "K".
February 15, 2005
ORDER AND REASONS
Before the Court is defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody (Rec. Doc. 612). The Court has reviewed the pleadings, memoranda, and the relevant law and finds that the petition is without merit.
PROCEDURAL HISTORY
On December 8, 2000, petitioner was charged in a third superseding indictment with conspiracy to possess with intent to distribute more than five kilograms of cocaine and with use of a communication facility to facilitate the commission of possession with intent to distribute cocaine hydrochloride. On December 14, 2000, petitioner pled not guilty to the charges in the third superseding indictment. On January 8, 2001, the date of trial, petitioner advised the Court that he wished to change his plea. On that date, petitioner pled guilty pursuant to a plea agreement to count one of the third superseding indictment which charged him with conspiracy to possess with intent to distribute more than five kilograms of cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and 846. On June 20, 2001, the Court sentenced petitioner to a term of imprisonment of 151 months. On May 20, 2004, petitioner, who is confined in a federal correctional institution in Beaumont, Texas, filed the instant motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence in the United States District Court for the Eastern District of Texas, Beaumont Division. The district judge referred the action to the magistrate judge who, on June 10, 2004, recommended that petitioner's motion be dismissed because it was barred by statute of limitations. On July 27, 2004, the magistrate judge issued an opinion finding that petitioner filed the instant § 2255 motion in the wrong venue. Therefore, petitioner's § 2255 motion was then transferred to this Court for consideration.
In petitioner's motion, he argues that he was denied ineffective assistance of counsel when his counsel allegedly failed to inform him that he could enter into a plea agreement. Petitioner argues that if his counsel had communicated the government's plea bargain offer sooner, he would have been entitled to a three-point reduction of his base offense level instead of a two-point reduction. In the presentence investigation report, the probation officer indicated petitioner is entitled to receive a two-point reduction for acceptance of responsibility. The base offense level determined applicable in the PSR was 34. No points were added and two points were deducted, resulting in a total offense level of 32. With a criminal history category of III, the guideline range for imprisonment for a total offense level of 32 was 151 to 188 months. Had petitioner's total offense level been 31, with a criminal history category of III, the guideline range would have been 135 to 168 months.
The Presentence Investigation Report noted: The defendant pled guilty the morning of trial. Since he accepts responsibility for the offense, he is entitled to a decrease of his offense by two levels. However, since he neither timely provided complete information to the government, nor timely notified authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently, he is not entitled to an additional one level decrease. Hence, pursuant to U.S.S.G. § 3E1.1(a), the offense is reduced to two levels.
ANALYSIS
The instant motion is time-barred by the state of limitations set forth in 28 U.S.C. § 2255. Congress enacted a strict statute of limitations for habeas corpus proceedings as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Section 2255 of Title 28 of the United States Code now provides, with respect to the timeliness of the petition:
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 flight 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.
Sections (2), (3), and (4) are not applicable to the present case and therefore Section (1) will be utilized to determine the date of the statute of limitations time-bar. The judgment of the conviction became final on June 9, 2001, the date the judgment and commitment order was entered by the Court. Pursuant to Federal Rule of Appellate Procedure 4(b)(1)(A), the petitioner must have filed his notice of appeal within 10 days of June 29, 2001, to obtain appellate review of his conviction and/or sentence. Thus, in order to be timely excluding Saturdays, Sundays, and legal holidays, his notice of appeal had to be filed on or before July 13, 2001. Therefore, his motion under 28 U.S.C. § 2255 must have been filed on or before July 13, 2002. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) ("unappealed federal criminal judgment becomes final ten days after it is entered, for purposes of the § 2255 statute of limitations, at least where there has been no district court extension of appeal for good cause or excusable neglect"). The petitioner's motion was not filed until May 20, 2004, over twenty-two months after the one-year statute of limitations. Therefore, the petition was filed late and is barred under the one-year provision of 28 U.S.C. § 2255. Because the motion is clearly time barred, the Court need not consider petitioner's ineffective assistance of counsel allegation.
Accordingly,
IT IS ORDERED that petitioner's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Rec.Doc.) is DISMISSED WITH PREJUDICE.