The opinion of the court was delivered by: RICARDO URBINA, District Judge
DENYING THE PETITIONER'S MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
This case comes before the court on the pro se petitioner's
motion for relief from his drug-trafficking conviction pursuant
to 28 U.S.C. § 2255. The petitioner alleges that his conviction
was unconstitutional for three reasons. First, the prosecutor
knowingly elicited false testimony from a witness, which denied
the petitioner his right to a fair trial. Second, the convictions
for both distribution of cocaine and distribution of cocaine
within 1000 feet of a school violate the double jeopardy clause
of the Constitution. Third, the sentencing judge improperly
enhanced his sentence by taking into account unadjudicated
criminal conduct. Because the petitioner has not timely filed his
§ 2255 challenge within the applicable statute of limitations,
the court denies the petitioner's motion for relief. II. BACKGROUND
On November 1, 1994, a jury found the petitioner guilty of conspiracy to
distribute 50 grams or more of cocaine base, unlawful distribution of five
grams or more of cocaine base, and unlawful distribution of five grams or
more of cocaine base within 1000 feet of a school. Pet'r's Mot. for Relief
("Pet'r's Mot.") at 2. Based on the sentencing guideline range, Judge Oliver
Gasch imposed a term of imprisonment of 180 months on each count to run
concurrently. Gov't's Mot. to Dismiss ("Gov't's Mot.") at 2.
The petitioner subsequently appealed his conviction to the D.C.
Circuit. The circuit affirmed his convictions on the conspiracy
and distribution counts but remanded the case for resentencing in
light of the district court's "merger of the distribution counts
with the schoolyard statute drug possession counts." United
States v. Baylor, 97 F.3d 542, 543 (D.C. Cir. 1996). Upon
remand, the case was reassigned to Judge Stanley Harris, who
issued an amended judgment on October 1, 1997, again sentencing
the defendant to 180 months on each count to run concurrently.
Gov't's Mot. at 2. On August 26, 2002, the petitioner filed a
motion to vacate his conviction, alleging that the prosecutor
knowingly elicited false testimony from a witness, the
convictions violate the double jeopardy clause of the
Constitution, and the sentencing judge improperly used
unadjudicated conduct to enhance the petitioner's sentence.
Pet'r's Mot. at 5. The petitioner also submitted a separate
memorandum in support of his petition, which contained additional
facts and argument. See generally Pet'r's Petition for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. 2255 and Memorandum in
Support Thereof ("Pet'r's Mem."). Subsequently, the case was
reassigned to this member of the court and the government filed a motion to dismiss the petitioner's motion as barred by the
relevant statute of limitations.*fn1 In response the
petitioner filed a motion to toll the limitations period. The
court concluded that the petitioner's motion to toll the
limitations period did not contain sufficient factual information
for the court to resolve it and ordered the petitioner to file a
supplement containing further information. Order dated July 28,
2004. The petitioner responded by supplying additional facts in
support of his motion to toll the limitations period. The court
now turns to the petitioner's motion.
A. Legal Standard for Relief Under 28 U.S.C. § 2255
A person may challenge the validity of his sentence under
28 U.S.C. § 2255 by moving the court that imposed the sentence to
"vacate, set aside, or correct the sentence." 28 U.S.C. § 2255;
see also Daniels v. United States, 532 U.S. 374, 377 (2001);
Wilson v. Office of Chairperson, Dist. of Columbia Bd. of
Parole, 892 F. Supp. 277, 279 n. 1 (D.D.C. 1995) (holding that
"it is well settled in this jurisdiction and elsewhere that §
2255 will lie only to attack the imposition of a sentence and
that an attack on the execution thereof may be accomplished only
by way of habeas corpus in the district of confinement") (quoting
Hartwell v. United States, 353 F. Supp. 354, 357-58 (D.D.C.
Section 2255 authorizes the sentencing court to discharge or
resentence a prisoner if the court concludes that it was without
jurisdiction to impose the sentence, the sentence was in excess
of the maximum authorized by law, or the sentence is otherwise
subject to collateral attack 28 U.S.C. § 2255; United States v.
Addonizio, 442 U.S. 178, 185 (1979) (noting that "[t]his statute
was intended to alleviate the burden of habeas corpus petitions
filed by federal prisoners in the district of confinement, by
providing an equally broad remedy in the more convenient
jurisdiction of the sentencing court") (citing United States v.
Hayman, 342 U.S. 205, 216-17 (1952)). A petitioner can
collaterally attack his sentence under section 2255 where the
sentencing judge made an "objectively ascertainable error." King
v. Hoke, 825 F.2d 720, 724-25 (2d Cir. 1987) (citing
Addonizio, 442 U.S. at 187).
The person seeking to vacate his sentence shoulders the burden
of sustaining his contentions by a preponderance of the evidence.
United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973);
accord Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).
Relief under section 2255, however, is an extraordinary remedy.
Addonizio, 442 U.S. at 184; United States v. Pollard,
959 F.2d 1011, 1020 (D.C. Cir. 1992).
B. The Court Denies the Petitioner's Motion for Relief Under 28
U.S.C. § 2255
1. The Petitioner Filed His Claim After the Expiration of the
Statute of Limitations
The court denies the petitioner's motion for relief under
section 2255 because the one-year statute of limitations for
filing a section 2255 claim has expired. Before the passage of
the Antiterrorism and Effective Death Penalty Act ("AEDPA") in
1996, a petitioner could file a motion for relief at almost any
time. United States v. Cicero, 214 F.3d 199
, 200 (D.C. Cir.
2000). In contrast, the AEDPA imposed a one-year statute of
limitations for § 2255 motions. Id. The one-year period runs
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; (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
Id. (quoting 28 U.S.C. § 2255). The government asserts that the
first approach applies to the petitioner's case, while the
petitioner maintains that the fourth approach reflects the
pertinent date. Because the petitioner fails to demonstrate that
the fourth approach applies, this court holds that the
petitioner's motion is barred by the statute of limitations.
a. The Petitioner's Motion is Untimely Under § 2255(1)-(3)
The government argues that the first approach, measuring one
year from the date which the judgment became final, applies to
the petitioner. Gov't's Mot. at 4. Section 2255 does not state
explicitly when a judgment becomes final, and the D.C. Circuit
has not addressed the issue of when the statute of limitations
begins to run in situations where the petitioner has not appealed
the district court's ruling. However, other circuits have
concluded that the statute begins to run on the date when the
defendant can no longer appeal the case. See, e.g.,
Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir.
2004) (concluding that a judgment that the defendant has not
appealed to the court of appeals becomes final once the time for
filing an appeal passes); United States v. Colvin,
204 F.3d 1221, 1225 (9th Cir. 2000) (holding that when a court of appeals
reverses a conviction or sentence in part or in whole, and
remands the case to the district court, the judgment does not
become final until the district court enters its amended judgment
and the time for appealing that judgment expires). This rationale
is consistent with the Supreme Court's holding that, in cases where a court of appeals has
issued a judgment and no writ of certiorari is filed, the
decision becomes final for purposes of section 2255 on the date
when the opportunity to file a writ of certiorari expires. Clay
v. United States, 537 U.S. 522, 525 (2003). In this case, the
district court issued its amended judgment on October 1, 1997.
Thus, under the first approach to calculating the statute of
limitations period, the petitioner would have had to file his
section 2255 motion by no later than October 1, 1998. The
petitioner, however, did not file his motion until August 26,
2002, almost four years after the amended judgment became final.
Accordingly, the petitioner's claim is untimely under § 2255(1).
The second approach is inapplicable to the petitioner. If there
is a government-created obstacle to filing a motion, then the
statute of limitations period begins tolling when that obstacle
is removed. 28 U.S.C. § 2255(2). In this case, the petitioner
does not assert that any such impediment existed. ...