LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on petitioner's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (DE 42, 44), and the government's motion to dismiss the petition as untimely. (DE 47). In accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge William A. Webb entered memorandum and recommendation (M&R) wherein it is recommended that the court grant the government's motion to dismiss and deny petitioner's motion. Petitioner filed objections to the M&R. In this posture, the matter is ripe for ruling.
Petitioner pled guilty pursuant to a written plea agreement to conspiracy to distribute and possess with intent to distribute fifty (50) grams or more of cocaine base (crack) and a quantity of cocaine in violation of 21 U.S.C. §846 (count 1); and possession of firearms in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (count 3). On February 25, 2011, the court sentenced petitioner to 90 months imprisonment on count 1 and 45 months imprisonment on count 3, to be served consecutively, producing a total term of 135 months. Petitioner did not appeal. On August 27, 2012, petitioner filed a motion for leave to file a motion under 28 U.S.C. § 2255(f)(3), which the court construed, upon notice given, as a motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. Petitioner asserts claims that he received ineffective assistance of counsel at the time of his plea, and that he is actually innocent of the § 924 offense. The government moves to dismiss on the basis that the petition is untimely.
The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations."
Under the Antiterrorism and Effective Death Penalty Act of 1996, § 2255 claims are subject to a one-year statute of limitations, which runs from the latest of
28 U.S.C. § 2255(f)(1-4).
Petitioner's motion to vacate is untimely under each prong of § 2255(f). First, it was filed more than one year after the judgment became final. "Where, as here, a defendant does not pursue a direct appeal, the conviction becomes final when the time expires for filing a direct appeal."
Second, petitioner does not allege any impediment to making the motion created by governmental action, pursuant to § 2255(f)(2).
Third, the Supreme Court has not recognized a new rule of substantive law retroactively applicable to cases on collateral review on the basis asserted here, as required by § 2255(f)(3). Petitioner suggests his motion is timely due to Supreme Court cases
Fourth, petitioner has not alleged a later date on which the facts supporting the claims presented could have been discovered through the exercise of due diligence, as required by § 2255(f)(4). Petitioner asserts that he only recently obtained an affidavit of a witness declaring that she placed a firearm into petitioner's safe without telling him, which firearm was assertedly one of the factual predicates for petitioner's firearm charge. As an initial matter, petitioner has not alleged that he could not have discovered these facts through the exercise of diligence, but rather only that he did not do so. Indeed, petitioner states that the witness affidavit was in possession of his attorney, thus confirming that petitioner could have, but did not, earlier obtain the affidavit. In any event, the fact supporting petitioner's 2255 claim — that the firearm in the safe was not petitioner's — if true, would have been known by petitioner himself at time of petitioner's guilty plea.
Petitioner suggests, nonetheless, that the limitations period should be tolled because he only recently found "legal help" to obtain the affidavit through a discovery request to his trial counsel, and was delayed in doing so due to his "mental disability." However, "a plaintiff's unfamiliarity with the legal process or his lack of legal representation" on collateral review, does not provide a basis for extending the limitations period.
Petitioner also suggests that the limitations period should be tolled due to "actual innocence." A claim of actual innocence sufficient to toll an otherwise time-barred claim "requires [a movant] to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial."
In evaluating allegations of actual innocence on collateral review, a defendant's statements during a plea colloquy "carry a strong presumption of verity" that poses "a formidable barrier in any subsequent collateral proceedings."
Petitioner has not alleged facts meeting the actual innocence standard. As an initial matter, petitioner's firearm count was not based upon the presence of a single firearm, but rather two firearms, thus undermining the probative value of the asserted new evidence to a claim on collateral review. (
A certificate of appealability may issue only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner must demonstrate reasonable jurists could debate whether the issues presented should have been decided differently or that they are adequate to deserve encouragement to proceed further.
After reviewing the claims presented on collateral review in light of the applicable standard, the court finds that a certificate of appealability is not warranted.
For the foregoing reasons, the court ADOPTS the recommendation of the magistrate judge, GRANTS the government's motion to dismiss, and DISMISSES petitioner's motion to vacate. A certificate of appealability is DENIED on the terms set forth herein.
SO ORDERED.