McWhorter v. United States of America (INMATE 3)

Filing 22

ORDERED that on or before 12/9/2013, the petitioner shall show cause why his § 2255 motion should not be dismissed because it was not filed within the one-year limitation period contained in 28 U.S.C. § 2255(f). Signed by Honorable Judge Terry F. Moorer on 11/19/2013. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JEREMY CHRISTOPHER McWHORTER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 2:11cv788-MEF
(WO)

ORDER
After careful review of the record in this case, and for the reasons indicated below,
the court deems it appropriate to allow the petitioner to show cause why his 28 U.S.C.
§ 2255 motion should not be dismissed because it was not filed within the one-year
limitation period in 28 U.S.C. § 2255(f).
Following a trial in May 2009, a jury found the petitioner guilty of possession with
intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count 1), and possession
of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A) (Count 2). On September 3, 2009, the district court sentenced the petitioner
to 13 months in prison on Count 1 and 60 months on Count 2, the terms to run consecutively.
The petitioner timely appealed to the Eleventh Circuit, and on June 2, 2010, that court
issued an opinion affirming the petitioner’s convictions and sentence. See United States v.
McWhorter, 380 Fed. App’x 965 (11th Cir. 2010) (unpublished). The appellate court issued
the mandate in the appeal on July 1, 2010. The petitioner did not file a petition for certiorari

review with the Supreme Court.
On September 8, 2011, the petitioner, proceeding pro se, filed the instant motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.1
Title 28 U.S.C. § 2255(f) specifies that the one-year limitation period for filing a
§ 2255 motion 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
governmental action;
(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.
28 U.S.C. § 2255(f).
Here, the petitioner did not file a petition for certiorari with the Supreme Court. In
that circumstance, “a judgment of conviction becomes final when the time expires for filing
a petition for certiorari contesting the appellate court’s affirmation of the conviction.” Clay
v. United States, 537 U.S. 522, 525 (2003). According to the rules of the Supreme Court,
a petition for certiorari must be filed within 90 days of the appellate court’s entry of
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Although the petitioner’s § 2255 motion was stamped “received” in this court on September
22, 2011, under the “mailbox rule,” the court deems his motion filed on the date he delivered it to
prison authorities for mailing, presumptively, September 8, 2011, the day that he signed it. See
Houston v. Lack, 487 U.S. 266, 271-72 (1988); Washington v. United States, 243 F.3d 1299, 1301
(11th Cir. 2001).

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judgment on the appeal or, if a motion for rehearing is timely filed, within 90 days of the
appellate court’s denial of that motion. See Sup.Ct. R. 13(3).
In this case, the Eleventh Circuit entered its judgment on the appeal on June 2, 2010
– the date on which it issued its opinion affirming the petitioner’s convictions and sentence.
Although the Eleventh Circuit issued the mandate in the appeal on July 1, 2010, “under
Supreme Court Rule 13(3), the date of the issuance of the mandate is irrelevant for
determining when a certiorari petition can be filed, and, therefore, irrelevant for determining
finality under § 2255.” Close v. United States, 336 F.3d 1283, 1285 (11th Cir. 2003). “[T]he
time to file a petition for a writ of certiorari runs from the date of entry of the judgment or
order sought to be reviewed, and not from the issuance date of the mandate.” Clay, 537 U.S.
at 527 (rejecting the idea that, when a federal prisoner does not seek certiorari, a conviction
becomes “final” for purposes of § 2255 upon issuance of the mandate by the appellate court).
As noted, the Eleventh Circuit issued its opinion affirming the petitioner’s convictions
and sentence on June 2, 2010. The petitioner had until 90 days later, or August 31, 2010,
to file a petition for certiorari. Thus, the petitioner’s conviction became “final” for purposes
of § 2255 on August 31, 2010. He had one year from that date, until August 31, 2011, to file
a timely motion for postconviction releif under 28 U.S.C. § 2255. However, he did not file
his § 2255 motion until September 8, 2011. It therefore appears that the petitioner failed to
file his § 2255 motion within the one-year limitation period.
Accordingly, it is
ORDERED that on or before December 9, 2013, the petitioner shall show cause
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why his § 2255 motion should not be dismissed because it was not filed within the one-year
limitation period contained in 28 U.S.C. § 2255(f).
Done this 19th day of November, 2013.

/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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