Clinton v. USA

Filing 3

MEMORANDUM OPINION & ORDER....Clinton filed this petition on September 22, 2014, well over a year after her conviction became final in January 2011. Accordingly, it is hereby ORDERED that Clinton may make a submission by December 1, 2014 explaining why her petition should not be dismissed as untimely. Failure to file such an explanation will result in dismissal of the petition. (Signed by Judge Denise L. Cote on 10/30/2014) Copies Mailed By Chambers To Keshawna Clinton(gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
KESHAWNA CLINTON,
:
Movant,
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:
-v:
:
:
UNITED STATES OF AMERICA,
:
Respondent.
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14cv7737 (DLC)
10cr0034-01 (DLC)
MEMORANDUM
OPINION & ORDER

DENISE COTE, District Judge:
On September 22, 2014, Keshawna Clinton filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C § 2255, seeking
to be resentenced.

Clinton argues that she was entitled to the

safety valve adjustment to her sentencing guidelines range.
Clinton will be given an opportunity to explain why her petition
should not be denied as untimely.
BACKGROUND
On October 7, 2010, a jury found Clinton guilty of
conspiring to distribute and possess with intent to distribute
one or more kilograms of heroin.

On January 21, 2011, Clinton

was sentenced to the mandatory minimum term of imprisonment of
120 months despite a sentencing guidelines range of 188 to 235
months.

Clinton did not appeal her conviction.

Therefore,

Clinton’s time to file a petition for a writ of habeas corpus
expired in February of 2012.

Since her conviction, Clinton has filed two other
challenges to her conviction.

On November 22, 2011, Clinton

requested a reduced sentence pursuant to the Fair Sentencing Act
of 2010.

As explained in a January 13, 2012 order, that request

was denied since Clinton was convicted for a heroin offense and
not a crack offense.
On August 8, 2012, Clinton requested a reduced sentence.
That request to be resentenced was denied by an Order of
September 27, 2012.

The Court declined to issue a certificate

of appealability, and Clinton did not appeal the decision.
DISCUSSION
Assuming that this petition should be treated as Clinton’s
first petition for a writ of habeas corpus, it should be denied
as untimely.

AEDPA provides a one-year period of limitations

for a federal inmate to file a habeas petition under 28 U.S.C.
§ 2255, which begins to run from the latest of a number of
triggering events, including “the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review.”

Id.

§ 2244(d)(1)(A).
The one-year limitations period for

§ 2255 petitions may

be equitably tolled “where the petitioner shows (1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
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filing.”

Rivas v. Fischer, 687 F.3d 514, 538 (2d Cir. 2012)

(citing Holland v. Florida, 560 U.S. 631, 649 (2010)).

The

determination that circumstances faced by petitioner were
“extraordinary” “depends not on how unusual the circumstance
alleged to warrant tolling is among the universe of prisoners,
but rather how severe an obstacle it is for the petitioner
endeavoring to comply with AEDPA’s limitations period.”

Id.

(citation omitted).
Clinton filed this petition on September 22, 2014, well
over a year after her conviction became final in January 2011.
Accordingly, it is hereby
ORDERED that Clinton may make a submission by December 1,
2014 explaining why her petition should not be dismissed as
untimely.

Failure to file such an explanation will result in

dismissal of the petition.
Dated:

New York, New York
October 30, 2014
__________________________________
DENISE COTE
United States District Judge

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