DiBruno v. USA

Filing 7

ORDER granting 3 Motion for Extension of Time Respond to Petitioners Motion to Vacate - Responses due by 10/3/2011; granting 5 Motion for Leave to Appear Pro Hac Vice added Kenneth Scott Williamson; denying without prejudice 6 Motion to Amend. Signed by Senior Judge Graham Mullen on 8/8/11. (com)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11cv297-W1-02
(3:06cr430-1-W)

JOSEPH DiBRUNO, JR.,

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Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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____________________________________)

ORDER

THIS MATTER is before this Court on Respondent’s Motion for Extension of Time,
filed July 26, 2011 (Doc. No. 3); habeas counsel’s Motion for Leave to Appear Pro Hac Vice,
filed July 28, 2011 (Doc. No. 5); and Petitioner’s Motion for Extension of Time to File Amended
Motion and Memorandum of Law, also filed July 28, 2011 (Doc. No. 6).
Petitioner filed a pro-se Motion to Vacate on June 14, 20112 raising 12 claims of
ineffective assistance of counsel. (Doc. No. 1). On June 21, 2011, the Court entered an Order
directing a response from Respondent. (Doc. No. 2). Pursuant to that Order, Respondent was
required to respond on or before August 4, 2011. (Id.). However, on July 26, 2011, Respondent
timely filed a Motion for Extension of Time seeking an additional sixty days in which to respond
to Petitioner’s allegations. (Doc. No. 3). In support of that Motion, counsel for Respondent
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This case is assigned to the Honorable Frank D. W hitney, United States District Judge. However, the
instant Order has been signed by the Honorable Graham C. Mullen, Senior United States District Judge, in Judge
W hitney’s absence. See 3:11mc67-W , Doc. No. 1.
2

Although Petitioner’s § 2255 Motion was received at the Court and filed by the Clerk on June 17, 2011,
such document contains a certification that it was placed in Petitioner’s Prison’s mailing system on June 14, 2011.
Therfore, pursuant to the “mail box” rule articulated by the Supreme Court in Houston v. Lack, 487 U.S. 266 (1988),
the Court will treat the Motion as having been filed on that earlier date.

asserts, inter alia, that she has requested affidavits from Petitioner’s three former attorneys and
such attorneys will need time to review the specific allegations against them in order to fully
respond to them. (Id. at 1-2). Therefore, for good cause shown, Respondent’s Motion for
Extension of Time (Doc. No. 3) will be granted nunc pro tunc.
Next, on July 28, 2011, Attorney Seth Allen Neyhart filed a Motion seeking permission
for Kenneth Scott Williamson to Appear Pro Hac Vice on behalf of Petitioner. (Doc. No. 5).
The Court finds that such Motion is in conformity with Local Rule 83.1(B); therefore, said
Motion will be granted.
Last, Attorney Neyhart has filed a Motion for Extension of Time to File Amended
Motion and Memorandum of Law, also seeking a 60-day extension in which to file an amended
Motion to Vacate and supporting memorandum. However, the Antiterrorism and Effective
Death Penalty Act (the “AEDPA”) imposes a 1-year statute of limitations period for filing a
motion to vacate. Specifically, the AEDPA provides:
A 1-year period of limitation shall apply to a motion under this section. The limitation
period shall run from the latest of–
(1) the date on which the judgment of conviction became final by the conclusion
of direct review or the expiration of the time for seeking such review;
(2) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;
(3) the date on which the constitutional 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 factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
2

The Fourth Circuit Court of Appeals affirmed Petitioner’s convictions and sentences by
opinion filed March 19, 2010. United States v. DiBruno, 370 F. App’x 389 (March 19, 2010)
(unpublished). Petitioner then filed a Petition for Rehearing and Rehearing En Banc but the
Circuit Court denied that Petition on April 26, 2010. Petitioner did not seek certiorari review in
the United States Supreme Court. Giving Petitioner the benefit of all conceivable doubts, his
Judgment became final 90 days after the Court of Appeals denied his Petition for Rehearing, that
is, on July 26, 2010. See Hibbs v. Winn, 542 U.S. 88, 97-98 (2004) (noting that timely filed
petition for rehearing tolls the time for filing a certiorari petition); and Clay v. United States, 537
U.S. 522, 532 (2003) (holding that a federal criminal judgment becomes final at expiration of
period during which defendant could have filed certiorari petition). Therefore, absent some
additional intervening circumstance, Petitioner had up to and including July 26, 2011 in which to
file all of his claims challenging his convictions and sentences.
Notably, counsel’s Motion for Extension of Time was filed two days after the expiration
of Petitioner’s one-year deadline. Furthermore, although that Motion indicates that counsel
needs an extension of up to and including October 3, 2011 in which to prepare an amended
Motion to Vacate, counsel does not give the Court any indication of the nature of his proposed
claims. Critically, counsel’s Motion fails to indicate that any such amended claim will relate
back to Petitioner’s timely filed claims as would be required under Fed. R. Civ. P. 15 (c)(1).
Thus, in the absence of this necessary information, the Court cannot grant habeas counsel’s
Motion for Extension of Time. Ultimately, the Court will deny the Motion without prejudice to
habeas counsels’ right to file a new motion providing all of the necessary information.
NOW, THEREFORE, IT IS ORDERED that:
1. Respondent’s Motion for Extension of Time (Doc. No. 3) is GRANTED nunc pro
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tunc, and Respondent shall have up to and including October 3, 2011 in which to file a response
to Petitioner’s Motion to Vacate;
2. Attorney Seth Allen Neyhart’s Motion for Leave for Attorney Kenneth Scott
Williamson to Appear Pro Hac Vice (Doc. No. 5) is GRANTED and Attorney Williamson shall,
if he has not already done so, set up an ECF account with this Court; and
3. Petitioner’s Motion for Extension of Time to File Amended Motion and Memorandum
of Law (Doc. No. 6) is DENIED without prejudice to Petitioner’s right to file a new motion for
extension of time as previously explained by the Court.
Signed: August 8, 2011

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