Darby v. United States of America(INMATE3)

Filing 17

ORDER TO SHOW CAUSE why his 28 U.S.C. 2255 motion should not be dismissed as it was not filed within the one-year limitation period established by the AEDPA; Show Cause Response due by 4/15/2009 for petitioner Darby. Signed by Honorable Susan Russ Walker on 3/26/2009. (cc, )

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M A R V IN DARBY, P e titio n e r, v. UNITED STATES OF AMERICA, R e sp o n d e n t. ) ) ) ) ) ) ) ) ) Civil Action No. 2:09cv52-WHA (WO) ORDER P u r s u a n t to the orders of this court, the United States has filed a response (Doc. No. 1 5 ) addressing the applicability of the period of limitation to the motion to vacate under 28 U .S .C . 2255 filed by petitioner Marvin Darby ("Darby") on January 18, 2009.1 In its re sp o n s e , the government argues that Darby's motion is barred by the one-year period of lim ita tio n applicable to motions filed under 28 U.S.C. 2255. See 105 of the Antiterrorism a n d Effective Death Penalty Act ("AEDPA"). 2 Specifically, the government argues that D a rb y's conviction for being a felon in possession of a firearm became final on August 9, 2 0 0 7 90 days after entry of the appellate court's judgment affirming the conviction and Although the motion was date-stamped "received" in this court on January 22, 2009, it was signed by Darby on January 18, 2009. Under the "mailbox rule," a pro se inmate's motion is deemed filed the date it is delivered to prison officials for mailing, here, presumptively January 18, 2009, the date Darby signed it. See Houston v. Lack, 487 U.S. 266, 271-72 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). "Section 105 amended 28 U.S.C. 2255, establishing a one-year `period of limitation' for motions filed pursuant to 2255." Goodman v. United States, 151 F.3d 1335, 1336 (11th Cir. 1998). This section became effective on April 24, 1996. 2 1 th a t the instant 2255 motion was filed several months after expiration of the one-year p e rio d of limitation. (See Doc. No. 15.) P a ra g ra p h 6 of 28 U.S.C. 2255 specifies that the one-year period of limitation begins f ro m the latest date 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 g o v e rn m e n ta l action in violation of the Constitution or laws of the United S ta te s is removed, if the movant was prevented from making a motion by such g o v e rn m e n ta l action; (3 ) the date on which the right asserted was initially recognized by the S u p rem e Court, if that right has been newly recognized by the Supreme Court a n d made retroactively applicable to cases on collateral review; or (4 ) the date on which the facts supporting the claim or claims presented c o u ld have been discovered through the exercise of due diligence. D arb y was convicted on February 14, 2006, and was sentenced by the district court o n June 8, 2006. The district court entered its judgment on June 16, 2006. (See Docket Sheet in Case No. 2:05cr177-LSC.) Darby appealed to the Eleventh Circuit, and on May 11, 2007, th a t court affirmed his conviction and sentence. (See Government Exhibit 1.) Darby filed n o th in g with the United States Supreme Court by August 9, 2007, which was the deadline f o r filing a timely petition for a writ of certiorari. On August 22, 2007, the Eleventh Circuit e n ter e d the following on its docket: [ L e tte r issued to] Marvin Darby[.] Your mtn for an ext to file a Petition for W rit of Cert is a Supreme Court filing. mtn is returned unfiled. A in f o rm a tio n sheet for filing Certiorari with the Supreme Court is enclosed[.] 2 (S e e Government Exhibit 1.) On February 7, 2008, Darby filed a petition for a writ of c e rtio ra ri with the Supreme Court. (See Government Exhibit 2.) The Supreme Court denied th a t petition on June 2, 2008. It appears to this court that, under the directives of 28 U.S.C. 2255, Darby's co n v iction became final on August 9, 2007 90 days after entry of the appellate court's ju d g m e n t affirming his conviction and sentence. When a defendant does not file a petition f o r certiorari with the United States Supreme Court, a conviction becomes "final" for p u rpo ses of 28 U.S.C. 2255 upon expiration of the 90-day period for seeking certiorari re v ie w . See Clay v. United States, 537 U.S. 522, 532 (2003); Kaufmann v. United States, 282 F .3 d 1336, 1338 (11 th Cir. 2002). The untimely petition for a writ of certiorari that Darby f ile d with the Supreme Court on February 7, 2008, did not extend the date on which the ju d g m e n t of conviction became final. See Edward v. United States, 295 F.Appx. 320, 321 (1 1 th Cir. 2008) (unpublished) ("Because the district court found that Edwards's petition for w rit of certiorari with the Supreme Court was untimely, the petition did not toll the time for filing his 2255 motion"). The time period for Darby to file a petition for writ of certiorari e x p ire d 90 after issuance of the Eleventh Circuit's opinion, at which time his conviction b e c a m e final and the one-year limitation period began to run. See Clay, 537 U.S. at 528. B e c au s e , in the absence of a petition for writ of certiorari, the judgment became final after e x p ira tio n of the 90-day period, the judgment did not revert back to being "non-final" b e c a u se of Darby's subsequently filed and late -- petition for writ of certiorari. 3 B e c au s e Darby's conviction became final on August 9, 2007, he had until August 9, 2 0 0 8 , to file a timely 2255 motion with this court. The instant 2255 motion was not filed u n til January 18, 2009. It does not appear that any of 2255's statutory exceptions to application of the lim ita tio n period are applicable in this case. Darby's claims do not rest on an alleged "right [ w h ich ] has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Moreover, there is no suggestion that the government p re v e n te d Darby from filing an earlier motion or that Darby has submitted grounds for relief th a t could not have been put forth earlier under the exercise of due diligence such that the lim ita tio n period should begin to run at a time other than upon the finality of his conviction. U n d e r the circumstances of this case as outlined herein, it appears to this court that the one-year period of limitation contained in 28 U.S.C. 2255 expired prior to Darby's f ilin g his motion to vacate. Accordingly it is O R D E R E D that on or before April 15, 2009, Darby shall show cause why his 28 U .S .C . 2255 motion should not be dismissed as it was not filed within the one-year lim ita tio n period established by the AEDPA. D o n e this 26 th day of March, 2009. /s/Susan Russ Walker SUSAN RUSS WALKER C H IE F UNITED STATES MAGISTRATE JUDGE 4

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