Sewell v. United States of America (INMATE3)
ORDER that on or before July 7, 2011, Sewell shall 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 for filing § 2255 motions, and for the other reasons set forth by the government in its supplemental answer. Signed by Honorable Judge Susan Russ Walker on 6/15/2011. (br, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
TIMOTHY JEVON SEWELL,
UNITED STATES OF AMERICA,
Civil Action No. 2:10cv658-ID
In a supplemental answer filed pursuant to this court’s orders, the government argues,
among other things, that Sewell’s § 2255 motion was filed after expiration of the applicable
one-year limitation period and is therefore time-barred. (Doc. No. 17.)
Title 28 U.S.C. § 2255(f) specifies that the one-year limitation period begins from 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
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
(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.
Judgment in Sewell’s criminal case was entered by the district court on October 21,
2005. (Gov. Exh. I.) Sewell appealed to the Eleventh Circuit, and the appellate court
affirmed his conviction on February 23, 2007. (Gov. Exh. J.) Sewell did not seek certiorari
review in the Supreme Court. Therefore, his conviction became final, for the purpose of 28
U.S.C. § 2255, on May 24, 2007, i.e., 90 days after the Eleventh Circuit’s affirmance of his
conviction. See Close v. United States, 336 F.3d 1283, 1284-85 (11 th Cir. 2003); Sup.Ct.R.
13(1) and (3). Thus, for the purpose of § 2255(f)(1), Sewell had until May 24, 2008, to file
a timely § 2255 motion. The instant § 2255 motion, however, was not filed until July 8,
Sewell claims that § 2255(f)(3) is the relevant subsection for determining the
timeliness of his motion and that the Supreme Court’s decision in Chambers v. United States,
555 U.S. 122 (2009), created a newly recognized right retroactively applicable to his case.
The government maintains that even assuming arguendo that Chambers created a new
retroactively applicable right, Sewell’s § 2255 motion is nevertheless untimely, because it
was filed more than a year after the Supreme Court’s January 13, 2009, decision in
Chambers. (Doc. No. 17 at 17-18.)
The government further maintains that, in light of the recent en banc decision of the
Eleventh Circuit in Gilbert v. United States, No. 09-12513, 2011 WL 1885674 (11 th Cir. May
19, 2011) (en banc), Sewell cannot demonstrate that he was “actually innocent” of being a
career offender for the purpose of U.S.S.G. § 4B1.1, because his claim of sentencing error
relates only to the calculation of his sentencing guidelines and the sentence he attacks does
not exceed the statutory maximum.
(Doc. No. 17 at 18-19.)
Therefore, argues the
government, the one-year limitation period must be applied to Sewell’s § 2255 motion,
thereby barring a merits-based review of his claims. The government further argues that all
claims in Sewell’s § 2255 motion are procedurally barred because were presented in his
direct appeal and decided adversely to Sewell by the Eleventh Circuit. See United States v.
Nyhuis, 21 F.3d 1340, 1343 (11th Cir. 2000). (Doc. No. 17 at 20.) Finally, the government
argues that Sewell’s claims that (1) the methamphetamine he was convicted of possessing
was improperly characterized as “Ice” for the purpose of sentencing and (2) the two-point
enhancement for committing the offense while still under a sentence was improperly applied
lack merit and do not provide Sewell with a basis for relief. (Id. at 22-23.)
Under the circumstances of this case as outlined herein, it appears to the court that the
one-year limitation period contained in 28 U.S.C. § 2255 expired before Sewell filed his
§ 2255 motion. Accordingly it is
ORDERED that on or before July 7, 2011, Sewell shall 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 for filing § 2255 motions, and for the other reasons set forth by the government in its
Done this 15th day of June, 2011.
/Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
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