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UNITED STATES v. JONES

April 30, 1997

UNITED STATES OF AMERICA
v.
DION A. JONES, Defendant.



The opinion of the court was delivered by: GREEN

 Presently pending is Defendant Dion A. Jones' Motion for Enlargement of Time to File Motion to Vacate and Set Aside Sentence/Conviction. For the reasons outlined below, his Motion will be denied.

 I. Background

 This background information is taken from Mr. Jones' motion and the record in this case, and is not disputed. After a three-day jury trial before Senior Judge Dale E. Saffels of the District of Kansas, then sitting by designation in this circuit, *fn1" in June 1993, Mr. Jones was convicted of distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a) & 841(b)(1)(B)(iii), and possession with intent to distribute narcotics within 1000 feet of a school, in violation of 21 U.S.C. § 860(a). On September 14, 1993, Mr. Jones was sentenced to 135 months incarceration on each count to be served concurrently. Three days later, he appealed his sentence and, in November 1994, the United States Circuit Court of Appeals for the District of Columbia affirmed his conviction under 21 U.S.C. § 860(a), but vacated his conviction under 21 U.S.C § 841. United States v. Jones, 43 F.3d 712 (D.C. Cir. 1994) (unpublished table decision); see 1994 U.S. App. LEXIS 34357, 1994 WL 665111 (D.C. Cir. 1994) (unpublished memorandum decision). The Supreme Court denied certiorari. Jones v. United States, 514 U.S. 1031, 131 L. Ed. 2d 243, 115 S. Ct. 1391 (Mar. 20, 1995).

 In May 1995, Jones, through counsel, filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate the conviction that had been affirmed by the Court of Appeals. After briefing by both parties, this Court denied his motion because Jones had failed to raise his constitutional argument at trial or on appeal. Mem. Op. & Order (Nov. 28, 1995). Again, Jones appealed. However, on October 31, 1996, the Court of Appeals dismissed his appeal for lack of prosecution.

 Finally, on April 28, 1997, Jones filed a pro se Motion for Enlargement of Time to File Motion to Vacate and Set Aside Sentence/Conviction. In that motion, he notes that the Anti-Terrorism and Effective Death Penalty Act of 1996 establishes a one-year statute of limitations for filing § 2255 motions and recognizes that that Act may mean that he "must file his Section 2255 Motion before April 24, 1997." However, without any explanation of exigent circumstances, he asks for an extension of 120 days in which to file his § 2255 motion.

 II. Discussion

 Section 105 of the Antiterrorism and Effective Death Penalty Act ("AEDPA" or "the Act") amends 28 U.S.C. § 2255 to require that

 
A second or successive [§ 2255] motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain
 
(1) newly discovered evidence that, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
 
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

 Antiterrorism and Effective Death Penalty Act of 1996 § 105, 28 U.S.C. § 2255 (1996). As amended by the Act, § 2244 states that "before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244 (1996). Because Mr. Jones' right to file a second § 2255 motion must initially be addressed by the Court of Appeals rather than by this Court, it is logical (although not specifically expressed in the Act) that the Court of Appeals is also the appropriate forum to address his motion for an extension of time within which to file that second § 2255 motion. Therefore, his motion for an extension of time pending before this Court must be dismissed.

 Alternatively, even were this Court considered the proper forum in which to address the motion for extension of time to a file a second § 2255 motion, the motion would be dismissed as untimely. Section 105 of the Act amends 28 U.S.C. § 2255 to provide that:

 
A 1-year period of limitation shall apply to a motion under [§ 2255]. The limitation period shall ...

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