Murray v. United States of America (INMATE 3)

Filing 15

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

TETHIN MURRY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CIVIL ACTION NO.
2:09cv770-MHT
(WO)

OPINION
Pursuant to 28 U.S.C. § 2255, petitioner filed this
habeas-corpus case.

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.

Also

before

the

court

objections to the recommendation.

are

petitioner's

After an independent

and de novo review of the record, the court concludes
that

the

objections

should

be

overruled

and

the

magistrate judge’s recommendation adopted.
Petitioner
recommendation

objects
that

his

to

the

§

2255

magistrate
petition,

judge’s
filed

on

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.

In his

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
(and

was

asserted

aware
in

his

of
§

the
2255

other

grounds

petition).

for
In

relief

his

§

he

2255

petition, petitioner specifically claims that he became
aware of his counsel’s failure to appeal in October 2003,
and

this

was

recommendation.

noted

in

the

magistrate

judge’s

In his objections, petitioner changes

his story and asserts, for the first time, that he did

2

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.
it

is

doubtful

that

this

would

excuse

While

petitioner’s

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