The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
DISCHARGING THE COURT'S ORDER TO SHOW CAUSE; DENYING THE DEFENDANT'S MOTION TO VACATE,SET ASIDE OR CORRECT SENTENCE GRANTING THE GOVERNMENT'S MOTION TO DISMISS THE DEFENDANT'S MOTION
Pending before the court is the defendant's pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. The defendant claims ineffective assistance of counsel because his attorney failed to file a notice of appeal following his 2004 guilty plea and sentencing to a 15-year statutory mandatory-minimum term of incarceration. The government, after not replying to the court's initial order to show cause why the defendant's motion should not be granted, filed a response to the court's second order directing the government to show cause why it should not be held in contempt for failure to comply with a criminal order. In the government's response, it maintains, inter alia, that the Special Proceedings Division did not receive the court's initial order to show cause and, therefore, did not knowingly or intentionally fail to comply with a court order. Consistent with the court's order, the government simultaneously filed its motion to dismiss the defendant's pro se motion. The government contends that the defendant's motion is untimely under § 2255 as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), because the one-year statute of limitations expired before the defendant filed his motion.
Upon consideration of the defendant and the government's motions and the entire record herein, the court dismisses its order to show cause and denies the defendant's motion, concluding that the latter is time barred under 28 U.S.C. § 2255.
On October 2, 2003, defendant Darrell Shelton, was charged with Unlawful Possession of a Firearm by a Person Convicted of a Crime Punishable by Imprisonment for a Term Exceeding One Year, in violation of 28 U.S.C. § 922(g)(1). At the preliminary hearing, the defendant was appointed an attorney from the Federal Defender's Office but then retained Thomas Abbenante, Esq. as counsel. Def.'s Mot. to Vacate Sentence ("Def.'s Mot.") at 6. On March 30, 2004, pursuant to a written plea agreement with the government, the defendant pled guilty to the indictment and acknowledged that he knew that Count 1 of the indictment carried a 15-year statutory mandatory-minimum term of incarceration, pursuant to 18 U.S.C. § 924(e)(1). Gov't's Opp'n to Def.'s Mot. to Vacate ("Gov't's Opp'n") at 2 n.1. As part of his plea colloquy, the defendant told the court that "a plea to the charge of possession of a firearm and ammunition by a convicted felon . . . carri[ed] a potential penalty of not less than 15 years."*fn1 Id.
On June 24, 2004, the court sentenced the defendant to a term of incarceration for 180 months followed by 3 years of supervised release. Id. at 2 n.2.*fn2 After sentencing, the defendant requested that his attorney file an appeal but was advised that, "there wasn't any loopholes and that the only way that petitioner could potentially receive consideration for a lesser sentence would be to cooperate with the Government." Def.'s Mot., Ex.1, Aff. of Darrell Shelton ("Def.'s Aff.") ¶¶ 14-15. The defendant's subsequent attempts to contact his attorney were to no avail. Id. ¶ 16. On December 14, 2006, the defendant received a requested copy of the docket sheet from the U.S. District Court, to check the status of his appeal and "noticed two things: 1) no appeal was filed, and 2) no Notice of Intent pursuant to 18 U.S.C. § 924(e) and U.S.S.G. §4B1.4 was filed by the government to allow the enhanced statutory minimum/maximum penalty."*fn3 Id. ¶¶ 17, 18.
On January 17, 2007, the defendant filed a pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel.*fn4 On April 2, 2007, the defendant filed a motion for an order to show cause why the defendant's motion should not be granted. On June 18, 2007, the court granted the defendant's motion and issued an order requiring the government to respond to the defendant's motion to vacate sentence within 30 days. Order (June 18, 2007) at 1. On September 21, 2007, approximately three months later, the defendant filed a renewed motion for order to show cause. The court granted the defendant's renewed motion and ordered the government to show cause why it should not be held in contempt for failure to comply with a criminal order. Order (Nov. 6, 2007) at 1. On December 5, 2007, the government simultaneously filed motions responding to the court's order to show cause and opposing the defendant's motion to vacate as untimely.
On January 11, 2008, the court issued a Fox Neal order to the defendant, affording him 20 days to respond to the government's motion. The defendant has not filed a response. With these facts ...