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SMITH v. U.S.

June 1, 2005.

WALTER J. SMITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

DENYING THE PETITIONER'S MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255
I. INTRODUCTION
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.

  III. ANALYSIS

  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. 1972)).

  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 due diligence.
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. ...


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