Opinion
No. 3:93-CR-0277-H(01), No. 3:02-CV-1338-H
September 12, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background
Nature of the Case: This is a Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to the provisions of 28 U.S.C. § 2255.
Parties: Movant is currently incarcerated in the federal prison system. The respondent is the United States of America (government).
Procedural History: On February 9, 1994, a jury found movant guilty of charges pending against him. In a judgment entered April 7, 1994, the District Court sentenced him to 78 months imprisonment on one count and 60 months imprisonment on a second count to be served consecutively. On April 25, 1994, movant filed a notice of appeal. In March 1995, the Fifth Circuit Court of Appeals dismissed his appeal. He submitted an unsigned motion to vacate in June 2002 with a motion for leave to file it. He signed a re-submitted motion in July 2002. It was file-stamped on July 29, 2002. The Court will consider the two motions as one, as only one is properly signed.
The Court denies the motion for leave as unnecessary. Movants generally need no court approval to file a motion to vacate under 28 U.S.C. § 2255. Petitioner, furthermore, has filed a properly signed motion and the Court has opened a separate civil action for its consideration.
In his motion, movant alleges that he received ineffective assistance of counsel when his trial attorney failed to interview his co-defendant, failed to file a motion in limine, and failed to file a motion for severance. Movant also alleges that the Court erred when it overruled counsel's objections to extraneous evidence and when it stacked his federal sentence with his state sentence. Lastly, movant alleges that he received ineffective assistance of appellate counsel when his attorney filed a brief stating that there were no arguable points of error.
II. Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. It applies to all motions to vacate filed under 28 U.S.C. § 2255 on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Movant filed his motion after the effective date of the AEDPA. Title I of the Act thus applies to his motion.
One of the major changes effectuated by the AEDPA is a one-year statute of limitations for motions to vacate. See 28 U.S.C. § 2255. As amended, § 2255's limitations provision 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 acuon;
(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.
Movant does not base his motion on any new right that has been made retroactively applicable to cases on collateral review. He has also shown no state-created impediment that prevented him from filing his motion to vacate. For purposes of this action, the statute of limitations thus runs from the date movant's conviction became final or the date on which he could have discovered the facts supporting his claims through the exercise of due diligence.
Having carefully reviewed the claims raised in the instant motion, the Court determines that the facts supporting them became known or could have become known with the exercise of due diligence by the time movant's conviction became final. There is no question, furthermore, that movant has not filed his motion within one year of knowing the factual predicate of his claims or within one year after his conviction became final. He filed the instant motion several years after that date. That fact does not, however, end the inquiry. Movant's conviction became final before the enactment of the AEDPA. "[F]ederal prisoners challenging convictions or sentences that became final prior to the AEDPA's effective date are accorded one year after the effective date of the AEDPA to file for relief under § 2255." United States v. Patterson, 211 F.3d 927, 929 (5th Cir. 2000). With such grace period, motions "filed on or before April 24, 1997 are timely." See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). In this instance, the grace period does not rescue the instant motion from the limitations provision. The grace period expired well before he filed the instant motion.
Although Flanagan dealt with a habeas action under § 2254, it relied upon United States v. Flores, 135 F.3d 1000 (5th Cir. 1998) — a case under § 2255. Flores, furthermore, noted that the limitation provisions for § 2255 motions and § 2254 petitions are virtually identical. 135 F.3d at 1002 n. 7. In Flanagan, the Circuit "considerled] Flores to be controlling authority in [its] § 2254 case." 154 F.3d at 200 n. 2. For questions of limitations, the Court may rely upon cases arising under either § 2254 or 2255. They have the same controlling effect.
The instant motion thus appears untimely. The Fifth Circuit Court of Appeals has held, however, that "the statute of limitations in § 2255 may be equitably tolled in "rare and exceptional circumstances." United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). Movant has, nevertheless, provided no basis for equitably tolling the statutory period of limitations. Consequently, the Court should find deny the motion as untimely.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court find the Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to 28 U.S.C. § 2255 barred by statute of limitations and DENY it with prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).