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U.S. v. LATNEY

February 2, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
V.
GREGORY L. LATNEY, DEFENDANT.



The opinion of the court was delivered by: Thomas F. Hogan, District Judge.

MEMORANDUM OPINION

Pending before the Court is defendant Gregory L. Latney's ("Latney" or "defendant") Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Upon careful consideration of defendant's Motion, the government's Motion to Dismiss defendant's Motion as untimely filed, defendant's reply, and the entire record herein, this Court will deny defendant's § 2255 Motion and grant the government's Motion to Dismiss.

I. BACKGROUND

On October 17, 1995, Latney was sentenced by this Court to 168 months' imprisonment, to be followed by five years' supervised release, for his conviction of aiding and abetting the distribution of 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841 (a)(1) and 841 (b)(1)(A)(iii) and 18 U.S.C. § 2. His conviction was upheld on appeal. See United States v. Latney, 108 F.3d 1446 (D.C.Cir. 1997). The Supreme Court denied defendant's petition for writ of certiorari on October 20, 1997. See Latney v. U.S., 522 U.S. 940, 118 S.Ct. 355, 139 L.Ed.2d 276 (1997).

Latney mailed the instant Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on November 14, 2000. On December 28, 2000, the United States filed a Motion to Dismiss defendant's § 2255 Motion as untimely filed. Defendant filed a reply to the government's Motion to Dismiss on January 25, 2001.

II. DISCUSSION

Effective April 24, 1996, in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress enacted a one-year period of limitations on the filing of § 2255 motions. Specifically, section 105 of the AEDPA amended 28 U.S.C. § 2255 to state that:

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 the 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 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.

In this case, the defendant's conviction became final on October 20, 1997, when the Supreme Court denied defendant's petition for writ of certiorari. See United States v. Willis, 202 F.3d 1279, 1280-81 (10th Cir. 2000) ("a judgment of conviction is final for purposes of the one-year limitation period in § 2255 when the United States Supreme Court denies a petition for writ of certiorari after a direct appeal, regardless of whether a petition for rehearing from the denial of certiorari is filed"). Accordingly, the defendant was required to file his § 2255 motion by October 20, 1998. However, the record shows that the defendant did not mail the instant Motion until November 14, 2000, more than three years after his conviction became final.

Defendant argues that his Motion is timely because it was filed within one year of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In addition, defendant contends that his second claim regarding the validity of this Court's jury instructions cannot be procedurally defaulted because it represents a "jurisdictional defect." Def.'s Motion at 3. The government responds by saying that defendant's Motion is outside the one-year statute of limitations, because Apprendi has not been interpreted to apply retroactively to cases on collateral review. With respect ...


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