United States of America v. Obaei
Filing
6
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 12/19/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
HOSSEIN OBAEI,
Defendant.
)
)
)
)
)
No. 13 C 8985
)(Criminal Case No.05 CR 254)
)
)
)
MEMORANDUM OPINION AND ORDER
Hossein Obaei (“Obaei”) has just filed a pro se document
that he captions “Motion To Vacate Judgement [sic] and Grant a
New Trial Under 28 U.S.C. § 2255”(“Section 2255”).
In his motion
Obaei sets out no fewer than a dozen grounds for relief,
targeting all of the lawyers who represented him -- his trial
counsel Andrew Staes, attorney Jeff Steinbeck (whom he retained
to handle the sentencing proceeding) and Alan Ackerman, who
handled his case on appeal.1
As Obaei would have it, he was the
victim of a concerted effort by those lawyers to violate his
constitutional rights.
For the present, however, this Court need not delve into the
merits of (or lack of merit in) Obaei’s substantive claims.
Instead Obaei must confront a threshold question of timeliness in
terms of the one-year limitation period prescribed for such
motions under Section 2255(f)(1), which starts the limitation
1
Obaei’s conviction and sentence were upheld by our
Court of Appeals in United States v. Hosseini, 679 F.3d 544 (7th
Cir. 2012).
clock ticking on “the date on which the judgment of conviction
becomes final.”2
Finality for that purpose is a term of art.
Even though the
Court of Appeals’ August 2, 2012 denial of rehearing and
rehearing en banc was the last substantive judicial determination
in Obaei’s case, either the potentiality or the actuality of a
petition for certiorari must be taken into account.
In that
respect Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012) has once
again quoted from and reconfirmed the Supreme Court’s holding in
Clay v. United States, 537 U.S. 522, 527 (2003) “that the federal
judgment becomes final ‘when this Court affirms a conviction on
the merits on direct review or denies a petition for a writ of
certiorari,’ or, if a petitioner does not seek certiorari, ‘when
the time for filing a certiorari petition expires.’”
In this instance Obaei’s Motion ¶ 11 reflects that he did
file a pro se petition for certiorari with the Supreme Court and
that it denied that petition on November 13, 2012.
That was
indisputably more than a year before Obaei launched his current
motion -- it was filed in this District Court on December 16,
2003 and it bears his signature with a stated execution date of
2
Section 2255(f) speaks in terms of the latest of four
dates: the one just quoted in the text and three other dates,
all of which other dates are clearly inapplicable to Obaei’s
situation.
2
November 27, 2013.3
Because the limitation provisions of Section 2255(f) are not
jurisdictional, what has been said to this point is not a ground
for dismissal of Obaei’s motion under Rule 4(b) of the Rules
Governing Section 2255 Proceedings for the United States District
Court (“Section 2255 Rules”).
Instead this Court orders the
United States to file a response on or before January 10, 2014
under Section 2255 Rule 5, limited to the question whether the
government is prepared to waive the limitation issue.
Obaei is
also granted leave to file a supplement to his motion on or
before that same date, raising any dispute that he may have with
the reasoning set out in this opinion.
This Court will take
appropriate action after receiving the parties’ submissions (or
after the due date for those submissions if either or both
parties fails or fail to provide any further input).
_________________________________
Milton I. Shadur
Senior United States Judge
Dated:
December 19, 2013
3
Although Obaei is entitled to the benefit of the
“mailbox rule,” the operative date under that “rule” would
necessarily be on or after November 27.
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?