The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District
This matter is before the Court upon consideration of
defendant's "Renewed Independent Action to Obtain Relief From
Judgment Not Affecting the Judgment of Conviction Compelling
Specific Performance of the Government's Promise Based on Breach
of the Written and Oral Plea Agreement From a Final Judgment.
Fed.R.Civ.P. 60(b)(6); Fed.R.Crim.P. 11(e)(1)(c)),"
recharacterized as a motion pursuant to 28 U.S.C. § 2255, and the
government's motion to dismiss. Having considered both motions,
the Court will dismiss defendant's motion as untimely.
On August 8, 1996, the government filed a two-count indictment
charging defendant with one count of conspiracy to possess with
intent to distribute five kilograms or more of cocaine, and one
count of unlawful possession with intent to distribute five
kilograms or more of cocaine. Def.'s Mot. at 1-2. Defendant and
the government reached a plea agreement, pursuant to which defendant would plead guilty to the
second count of the indictment. Id. at 2. In exchange, the
government, among other things, was to (1) withdraw a Notice of
Previous Conviction filed with the Court on September 10, 1996,
(2) make no attempt to increase defendant's offense level under
the federal sentencing guidelines, (3) decline to seek an upward
departure in sentencing, and (4) move to dismiss the remaining
count of the indictment. Id., Ex. 1 (Excerpt from plea
agreement) & Ex. 2 (Excerpt from presentence investigation
report). Defendant was under the impression that he would be
sentenced to a term of 10 years' imprisonment because, without
the Notice of Previous Conviction, he was no longer subject to a
mandatory minimum sentence of 20 years' imprisonment. Id. On
October 3, 1996, defendant entered his guilty plea. Id. at 2.
On January 8, 1997, the court imposed a sentence of 12 years'
imprisonment. Def.'s Mot. at 2. Defendant did not appeal his
Defendant alleges that the government breached the plea
agreement by using prior convictions and by recommending a
sentence of 12 years' imprisonment. Def.'s Mot. at 2. He now
moves "to reduce his incorrect sentence based on breach of the
plea agreement by the government[, and to] sentence defendant to
a Base Offense Level of 31, Criminal History Category of (I)
without a notice of enhancement as to previous convictions to a
sentence of 10 years 12-months guaranteed under the written and
verbal plea agreement." Def.'s Mot. at 5.
A. Defendant failed to file his motion within the one-year
In relevant part, Sec. 2255 provides: 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 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.
28 U.S.C. § 2255. For purposes of defendant's motion, only the
first subparagraph applies. He argues neither that the government
created an impediment to his filing an appeal, nor that the
Supreme Court newly recognized a right made applicable
retroactively to a case on collateral review, nor that relevant
facts supporting his claim only now have come to light.
If a criminal defendant does not appeal his conviction, the
one-year statute of limitations begins to run when the time
period for filing an appeal expires. Moshier v. United States,
402 F.3d 116, 118 (2d Cir. 2005) (holding that, "for purposes of
§ 2255 motions, an unappealed federal criminal judgment becomes
final when the time for filing a direct appeal expires");
Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th
Cir. 2004) (holding that "an unappealed federal criminal judgment
becomes final ten days after it is entered, for purposes of the §
2255 statute of limitations, at least where there has been no
district court extension of appeal time for good time or excusable neglect");
Baylor v. United States, 314 F.Supp.2d 47, 51 (D.D.C. 2004)
(dismissing as untimely a § 2255 motion filed more than one year
after issuance of amended judgment). In a criminal case,
generally, a defendant must file his notice of appeal within 10
days after entry of the judgment. See Fed.R.App.P.
This Court imposed sentence on January 8, 1997. Defendant did
not file a direct appeal of his criminal conviction. He filed his
motion, later recharacterized as a Sec. 2255 motion, on July 11,
2002, long after the one-year statute of limitations expired.
B. The statute of limitations is not tolled.
Defendant acknowledges that he filed his motion nearly 6 years
after his conviction. See Def.'s Mot. at 5. He argues that no
statute of limitations applies to an "independent action to
relieve [a] party from judgment under [Fed.R.Civ.P.]
60(b)(6)." Id. Rule 60(b) is irrelevant here. The claim
defendant raises must be brought in a Sec. 2255 motion, and the
Court has recharacterized his motion accordingly.*fn1
Assuming without deciding that equitable tolling applies in
Sec. 2255 cases, such relief is warranted only in extraordinary
circumstances beyond defendant's control which made it impossible
for him to file a motion timely. See United States v. Cicero,
214 F.3d 199, 203 (D.C. Cir. 2000) (citing Calderon v. United
States District Court, 128 F.3d 1283, 1288 (9th Cir. 1997)).
A defendant who is without legal representation, or sits on his
rights, or is ignorant of the law, does not present extraordinary
circumstances. Id. In this case, defendant presents no reason
at all for his ...