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