Johnson v. United States of America

Filing 3

ORDER vacating 2 Order to Show Cause. SO ORDERED that the Court directs petitioner to show cause by written affirmation, within thirty (30) days from entry of this Order, why the petition should not be dismissed as time-barred by the one-year sta tute of limitations applicable to his section 2255 motion. Petitioner should present any facts which support equitable tolling of the period of limitations. No response or answer shall be required at this time from respondent and all further proceedi ngs shall be stayed for thirty (30) days or until petitioner has complied with this Order. If petitioner fails to comply with this Order within the time allowed, the instant petition shall be dismissed with prejudice as time-barred under 28 U.S.C. § 2255(f). CM to pro se petitioner. Ordered by Judge Sandra J. Feuerstein on 11/20/2012. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------)(
BASIL VALENTINE JOHNSON,
Petitioner,

ORDER
12-CV-5504~WED

-against-

IN CLERK'S OFFICE

U S DISTRICT COURT E 0 N y

UNITED STATES OF AMERICA,
Respondent.

--------------------------------------------------------------)(

*

11\JV 2 0 2012

*

LONG i::.LAND OFFICE

FEUERSTEIN, District Judge:
Petitioner Basil Valentine Johnson ("petitioner), appearing prose, seeks a writ ofhabeas corpus
(the "petition") pursuant to 28 U.S.C. § 2255 ("section 2255"). Pursuant to Rule 4 of the Rules
Governing Section 2254 Cases, the Court has conducted an initial consideration of the petition and, for
the reasons set forth below, has determined that the petition appears to be time-barred by the one year
statute oflimitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The
Court directs petitioner to show cause within thirty (30) days of the entry of this Order why the petition
should not be dismissed as time-barred.
I.

Background
Petitioner, an alien who had previously been deported from the United States after a

conviction for the commission of an aggravated felony, pled guilty on July 7, 2010 before the
undersigned to one count of re-entry to the United States without the permission of the Secretary of
the United States Department of Homeland Security, in violation of8 U.S.C. §§ 1326(a) and
1326(b)(2). Petitioner was sentenced on February I, 2011 to thirty-seven (37) months imprisonment
with three (3) years of supervised release upon his release from imprisonment. Judgment was
entered on February 4, 2011. Petition at~ I; see also Docket Entry Nos. 3, 7, 16, 17, United States
v. Johnson, No. 10-CR-363 (E.D.N.Y. 2011).

,•

Petitioner alleges that he never appealed his conviction or sentence, petition at~ 12, and
instead filed the instant petition on October 26, 2012.
Discussion
A one-year statute of limitations applies for the filing of a petition for a writ of habeas corpus
by a person in custody pursuant to a federal court conviction. 28 U.S.C. § 2255(f), The one-year
period runs from the date on which one of the following four events occurs, whichever is latest:
(I) 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(£)(1)-(4). Accordingly, given that the petition was filed one (I) year and seven (7)
months after his judgment of conviction became final on February 4, 2011, the instant petition
appears untimely. In order to be timely, this petition should have been filed on or before February 4,
2012. Instead, this petition was filed on October 26, 2012, well-after the one year limitations period
had already expired. Therefore, unless the petitioner can show that the statute of limitations period
should be tolled, the petition is barred by 28 U.S.C. § 2255(f) as untimely.
The limitations period may be equitably tolled if petitioner can demonstrate "(I) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way
and prevented timely filing." Holland v. Florida, 130 S.Ct 2549,2562 (2010). Given petitioner's
2

pro se status, he is afforded an opportunity to demonstrate whether equitable tolling should apply to
this petition.
Conclusion
Accordingly, the Court directs petitioner to show cause by written affirmation, within thirty
(30) days from entry of this Order, why the petition should not be dismissed as time-barred by the
one-year statute oflimitations applicable to his section 2255 motion. Day v. McDonougl:J, 547 U.S.
198, 209 (2006); Acosta v. Artuz, 221 F.3d 117, 124 (2d Cir. 2000). Petitioner should present any
facts which support equitable tolling of the period of limitations.
No response or answer shall be required at this time from respondent and all further
proceedings shall be stayed for thirty (30) days or until petitioner has complied with this Order. If
petitioner fails to comply with this Order within the time allowed, the instant petition shall be
dismissed with prejudice as time-barred under 28 U.S.C. § 2255(f).

SO ORDERED.

s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge

Dated: Novemberb(Q 2012
Central Islip, New York

3

•'

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

________________________________X
BASIL VALENTINE JOHNSON
Petitioner,

PETITIONER'S
AFFIRMATION

-against12-CV-5504 (SJF)

UNITED STATES OF AMERICA,
Respondent.

____________________________X
BASIL JOHNSON VALENTINE, appearing pro se, makes the following affirmation under
the penalties of perjury: I am the petitioner in this action and I respectfully submit this affirmation in
response to the Court's Order dated ___________ . The instant petition should not be time-barred
by the one-year period oflimitation because:

.· . ·•

[YOU MAY ATTACH ADDITIONAL PAGES, IF NECESSARY]
In view of the foregoing, it is respectfully submitted that the instant Petition should be
permitted to proceed.

DATED: __________
Signature & Identification Number

Address

City, State & Zip Code