Filed: Mar. 06, 2012
Latest Update: Mar. 06, 2012
Summary: ORDER SUSAN RUSS WALKER, Chief Magistrate Judge. Pursuant to the orders of this court, the United States has filed a supplemental response (Doc. No. 5) addressing the applicability of the one-year period of limitation in this case pursuant to the provisions contained in 28 U.S.C. 2255(f). The government argues that the petitioner's 2255 motion, which was filed on or about January 3, 2012, is untimely under all four subdivisions of 2255(f) 1 and is due to be dismissed. The pleadings and
Summary: ORDER SUSAN RUSS WALKER, Chief Magistrate Judge. Pursuant to the orders of this court, the United States has filed a supplemental response (Doc. No. 5) addressing the applicability of the one-year period of limitation in this case pursuant to the provisions contained in 28 U.S.C. 2255(f). The government argues that the petitioner's 2255 motion, which was filed on or about January 3, 2012, is untimely under all four subdivisions of 2255(f) 1 and is due to be dismissed. The pleadings and ..
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ORDER
SUSAN RUSS WALKER, Chief Magistrate Judge.
Pursuant to the orders of this court, the United States has filed a supplemental response (Doc. No. 5) addressing the applicability of the one-year period of limitation in this case pursuant to the provisions contained in 28 U.S.C. § 2255(f). The government argues that the petitioner's § 2255 motion, which was filed on or about January 3, 2012, is untimely under all four subdivisions of § 2255(f)1 and is due to be dismissed.
The pleadings and court record reflect that, upon revocation of his probation, the petitioner was sentenced on November 6, 2008, to 84 months' imprisonment. Judgment was entered by the district court on November 7, 2008. The petitioner did not appeal from that judgment. By operation of law, then, the judgment became final on November 17, 2008, upon expiration of the time for him to file an appeal (i.e., 10 days after entry of judgment by the district court).2 Thus, the petitioner had until November 17, 2009, to file a § 2255 motion that was timely under the provisions of § 2255(f)(1).
As noted above, the petitioner did not file his § 2255 motion until January 3, 2012.3 For this reason, the government contends that the § 2255 motion is untimely under the provisions of § 2255(f)(1). The government contends that the § 2255 motion is also untimely under the provisions of § 2255(f)(2), because the petitioner does not show that some unconstitutional government action impeded him from filing his § 2255 motion at an earlier date. The government contends that the § 2255 motion is likewise untimely under § 2255(f)(3), because it is not based on a right newly recognized by the Supreme Court. The government also contends that the § 2255 motion is untimely under § 2255(f)(4), because the petitioner did not exercise due diligence in discovering the facts he asserts in support of his claim or in asserting his claim. Finally, the government contends that the petitioner has not come forward with anything to demonstrate that equitable tolling of the one-year limitation period should be applied in his case.
It appears to the court that the one-year period of limitation contained in 28 U.S.C. § 2255(f) expired before the petitioner filed his § 2255 motion. Accordingly it is
ORDERED that on or before March 27, 2012, the petitioner shall show cause why his § 2255 motion should not be dismissed as it was not filed within the applicable one-year limitation period.
