(Civil Action No. 01-2549)
The opinion of the court was delivered by: Richard W. Roberts, United States District Judge.
Christopher Washington was sentenced to 262 months in prison following his guilty plea to unlawful possession with intent to distribute fifty grams or more of cocaine base. He now moves under 28 U.S.C. § 2255 (2000) to vacate, set aside, or correct his sentence. The government has moved to dismiss, asserting that Washington's motion is untimely. Because Washington's § 2255 application was not filed within the one-year statute of limitations and the circumstances do not justify equitable tolling, Washington's motion will be dismissed without a hearing as untimely.
Washington was charged with unlawful possession with intent to distribute fifty grams or more of cocaine base (Count One), 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (2000); unlawful possession of a firearm and ammunition by a convicted felon (Count Two), 18 U.S.C. § 922(g)(1); and using and carrying a firearm during a drug trafficking offense (Count Three). 18 U.S.C. § 924(c)(1). While represented by counsel, Washington pled guilty to Count One of the indictment. (Tr. of Apr. 13, 1999, at 56, 61.) The Court informed Washington that if he pled guilty to unlawful possession with intent to distribute fifty grams or more of cocaine base, he could receive a sentence of up to life in prison. (Id. at 44.) Washington acknowledged that he understood the terms of the plea agreement. (Id. at 42-44.) The government proffered that it could prove beyond a reasonable doubt, and Washington acknowledged as true, that during a traffic stop, Washington appeared to place something on the floorboard of the front passenger seat in which he was seated, and the police recovered 116.1 grams of cocaine base and a scale that fell to the ground when Washington was taken out of the car; an operable loaded pistol on the car floor at Washington's seat; and a list of drug customers and prices, and $1,204 in cash, on Washington's person. (Id. at 57-58.) Washington admitted during his plea that he had possessed about one hundred sixteen grams of crack cocaine and had intended to sell it. (Id. at 59.)
At the sentencing hearing on March 6, 2000, the Court found that partly because of the quantity of drugs Washington had possessed, he was a career offender under § 4B1.1 of the U.S. Sentencing Guidelines with an offense level of 37 and a criminal history category of VI. After a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1, Washington's adjusted offense level was 34, yielding a sentencing range of 262 to 327 months. (Pre-Sentence Investigation Report at 16.) The Court sentenced Washington to 262 months in prison. (J. of Mar. 10, 2000.) The Court warned Washington that if he wanted to appeal his sentence, he had to file his notice of appeal within ten days of judgment being entered. Judgment was entered on March 20, 2000, but Washington filed no notice of appeal. On November 30, 2001, Washington filed this § 2255 motion to vacate, set aside, or correct sentence.*fn1
Section 2255 allows a prisoner to move a court to vacate, set aside, or correct his sentence on the basis that it was improperly imposed.*fn2 Before the merits of a § 2255 motion can be heard, a court must first determine whether the motion is timely. See United States v. Cicero, 214 F.3d 199, 202 (D.C. Cir. 2000). The motion is timely if filed within the applicable statute of limitations or if the limitation period is subject to equitable tolling. Id.
Section 2255 is subject to a one-year statute of limitations. The limitations time period:
run[s] 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 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; [or] (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....
Cicero, 214 F.3d at 200-01 (quoting § 2255 ¶ 6).
Section 2255 does not explicitly state when a judgment of conviction becomes final. In cases where a criminal defendant does not file a notice of direct appeal within the required ten day period,*fn3 circuits have held that the proper date for beginning the § 2255 statute of limitations is either the date judgment is entered or the date by which a notice of appeal must be filed. See United States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001) (stating that the § 2255 statute of limitations begins on the date judgment is entered); United States v. Schwartz, 274 F.3d 1220, 1223-24 & n.1 (9th Cir. 2001) (stating that determining whether the § 2255 statute of limitations begins on the date judgment is entered or the date on which the notice of appeal must be filed was unnecessary because more than twelve months had passed from the later date). In this case, the Court entered judgment against Washington on March 20, 2000, and Washington filed no notice of appeal. His judgment ...