Roberts v. USA
ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Antar H Roberts. Case is dismissed w/prejudice. Movant denied a motion for certificate of appealability. Signed on 11/4/13 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)*** Modified on 11/4/2013 to reflect that a copy of the Order was mailed to Plaintiff: Antar H. Roberts, Reg. No. 14161-045, 9595 W. Quincy Ave., Littleton, Colorado 80123 (Wheeler, LaTandra).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
ANTAR H. ROBERTS,
UNITED STATES OF AMERICA,
) Case No. 13-0772-CV-W-FJG
) Crim. No. 10-0162-12-CR-W-FJG
Pending before the Court is Movant’s Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (Doc. No. 1). Movant, who is incarcerated at the Federal
Correctional Institution in Littleton, Colorado, filed the pending motion on July 31, 2013.1
Movant entered a guilty plea in the above-captioned criminal case on October 28, 2010,
and was sentenced to 151 months of imprisonment on one count of conspiracy to
distribute 500 grams or more of cocaine and 5 grams or more of cocaine base on
November 21, 2011.
Written Judgment was entered on November 22, 2011.
December 29, 2011, movant filed an untimely pro se notice of appeal, which was
dismissed by the United States Court of Appeals for the Eighth Circuit on May 25, 2012.
Respondent argues that movant’s Section 2255 motion is untimely-filed pursuant
to the one-year statute of limitations set forth in Section 22552 (Doc. No. 3). Movant
Movant’s motion was mailed and dated on July 25, 2013.
28 U.S.C. § 2255 provides:
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of –
responds that equitable tolling should be applied to both his pro se notice of appeal and to
the untimely filing of this Section 2255 motion because his guilty plea counsel failed to
follow movant’s express instructions to file a notice of appeal and because movant could
not contact his attorney in time to file a timely notice of appeal. Doc. No. 5. Movant
further states in his “Sur-Reply” (Doc. No. 9) that he “was not able to obtain or discover
evidence needed to support the grounds alleged in his 28 U.S.C. § 2255 motion . . . until
February 28, 2013, when movant received information requested from the court.” Doc.
No. 9, p. 1.
Because movant did not file a timely direct appeal challenging the entry of his
Judgment and Commitment Order on November 22, 2011, movant’s judgment of
conviction became final and the one-year statute of limitations for his Section 2255
motion began to run no later than December 6, 2011, when the fourteen-day period for
taking a direct appeal under Fed. R. App. P. 4(a)(1)(A)(i) expired. Therefore, movant
had until December 6, 2012, to file a timely Section 2255 motion.
Movant signed his Section 2255 motion on July 25, 2013, more than six months
(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 diligence.
after the statutory deadline. The Eighth Circuit has held that equitable tolling of the
one-year statute of limitations applies only where extraordinary circumstances beyond a
prisoner’s control prevent timely filing, see United States v. Hernandez, 436 F.3d 851,
858 (8th Cir. 2006), and where the prisoner has exercised due “diligence in pursuing the
matter.” See United States v. Martin, 408 F.3d 1089, 1095 (8th Cir. 2005). In the
present matter, the government had no part in lulling movant into inaction or in preventing
movant from filing a timely direct appeal. Moreover, movant has failed to demonstrate
due diligence in pursuing this Section 2255 motion by filing it over six months out-of-time.
Earl v. Fabian, 556 F.3d 717, 724 (8th Cir. 2009)(no due diligence when movant delayed
filing motion despite having notice and at least eight months to file motion); Garrett v.
United States, 195 F.3d 1032, 1033 (8th Cir. 1999)(an untimely motion does not extend or
toll the time to file an appeal).
Finally, any unfamiliarity with the laws or lack of legal research materials do not
relieve movant of the duty to file a timely motion pursuant to 28 U.S.C. § 2255. See
United States v. McIntosh, 332 F.3d 550, 551 (8th Cir. 2003)(citing Cross-Bey v.
Gammon, 322 F.3d 1012, 1015-16 (8th Cir. 2003))(finding unrepresented prisoner’s lack
of legal knowledge does not support equitable tolling); Baker v. Norris, 321 F.3d 769, 771
(8th Cir. 2003)(finding time limitations on use of law library did not make it impossible for
petitioner to file her petition on time, denying equitable tolling).
Accordingly, it is ORDERED that movant’s motion to vacate, set aside, or correct
movant’s sentence pursuant to 28 U.S.C. § 2255 is DENIED as untimely, and this case is
DISMISSED WITH PREJUDICE. No evidentiary hearing will be held in this matter
because the issues raised are resolvable by the record. Furthermore, movant will be
denied a motion for certificate of appealability, in that the issues raised are not debatable
among reasonable jurists, nor could a court resolve the issues differently.
IT IS SO ORDERED.
Date: November 4, 2013
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge
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