Murray v. United States of America (INMATE 3)
OPINION. Signed by Honorable Judge Myron H. Thompson on 5/26/2011. (dmn)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
UNITED STATES OF AMERICA,
CIVIL ACTION NO.
Pursuant to 28 U.S.C. § 2255, petitioner filed this
This lawsuit is now before the court
on the recommendation of the United States Magistrate
Judge that the habeas-corpus request be denied as timebarred.
objections to the recommendation.
After an independent
and de novo review of the record, the court concludes
magistrate judge’s recommendation adopted.
August 3, 2009, should be denied as time-barred under the
one-year limitations period. Petitioner was sentenced in
July 2003, and he did not file a direct appeal.
objections, he does not attempt to make a case that the
court’s treatment of the motion to dismiss indictment,
filed in 2004, somehow prevented him from raising his
§ 2255 issues before 2009.
In any event, in its 2004
Castro order, this court expressly invited petitioner to
raise any § 2255 claims he might have.
He declined that
invitation even though, at that time, he was already
aware (at least based on what he says in his § 2255
petition) that his counsel had not filed a direct appeal
petition, petitioner specifically claims that he became
aware of his counsel’s failure to appeal in October 2003,
In his objections, petitioner changes
his story and asserts, for the first time, that he did
not became aware of counsel’s failure in this regard
until October 2004.
He then says counsel’s failure to
comply with his request to file an appeal is a ground for
equitable tolling of the statute of limitations.
untimeliness even if he had filed his § 2255 petition in
either 2004 or 2005, it clearly does not excuse his
waiting until August 2009 to file his § 2255 petition.
Petitioner’s objections, therefore, do not have merit.
An appropriate judgment will be entered.
DONE, this the 26th day of May, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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