Kelly v. USA

Filing 2

ORDER dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Max O. Cogburn, Jr on 5/10/2013. (Pro se litigant served by US Mail.)(blf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13cv276
[3:97cr333]
LEROY JOSEPH KELLY,

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Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.
_______________________________

ORDER

THIS MATTER is before the court on petitioner’s “Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody”(#1).
Previously, this court deemed petitioner’s Modify Sentence Under 18 U.S.C. §
3582(1)(B) [§ 3582(b)(1)]” (United States v. Kelly, 3:97cr333-1 (#74)) to be a successive
Motion to Vacate, Set Aside, Or Modify Sentence under 28, United States Code, Section
2255, id. at Order (#75), which was affirmed by the Court of Appeals for the Fourth
Circuit, Kelly v. United States, No. 12-6937 (4th Cir. Oct. 2, 2012).
For the first time, petitioner argues that his Motion to Vacate is not a second or
successive petition because in 2002, while granting in part his first Motion to Vacate,
Judge Voorhees held that “the Court will not address the remainder of the Petitioner’s
claims but will dismiss them without prejudice to file another habeas motion, if
necessary, after a direct appeal.” Order (#44) at 2. The court will, therefore, conduct an

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initial screening of the instant petition without considering it to be a second or successive
petition.
INITIAL SCREENING
The court has considered the pending motion and determined that, to the extent
petitioner seeks relief under 28, United States Code, Section 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody, an initial screening of the petition
under the Rules Governing § 2255 Proceedings, Rule 4(b) 28 U.S.C. §2255 is
appropriate:
1.

The court finds that the petition has been signed under penalty of perjury,

Rule 2(b)(5), Rules Governing Section 2255 Proceedings:
2.

The court finds that petitioner has asserted that this action has been timely

filed under § 2255(f). See Petition (#1) at 12. He contends that “[a]ny motion/petition
this Petitioner filed was misconstrued as a second/successive petition, therefore,
unauthorized to be filed . This misconstruction occurred from 2005 till the present.”
Reading Judge Voorhees’s Order (#44) in a light most favorable to petitioner, he had one
year from his judgment became final to file another Motion to Vacate.

Review of the

pleadings reveals that petitioner exhausted his direct appeal of the Judgment in this case
on November 29, 2004, when the United States Supreme Court denied the petition for
certiorari. See FCCA Order (#50). The next filing by petitioner was not until August 1,
2007 (with a mailing date of July 26, 2007), of a Motion for Temporary Restraining
Order. While the court agrees with petitioner that Judge Voorhees’s Order left the door
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open to file another Motion to Vacate, the deadline for filing such a petition ran not later
than November 29, 2005. Thus, there was no petition filed within the applicable time to
be “misconstrued.”
District courts are “permitted, but not obliged, to consider, sua sponte, the
timeliness of a . . . habeas petition.” Day v. McDonough, 547 U.S. 198, 209 (2006); see
also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir.2006) (carving out habeas
corpus petitions and in forma pauperis complaints as narrow circumstances to permit sua
sponte consideration of statute of limitations when defense is clear on face of petition or
complaint).

Inasmuch as the AEDPA's “limitations provisions ... do not speak in

jurisdictional terms or refer in any way to the jurisdiction of district courts ... § 2255's
limitations period is subject to equitable modifications such as tolling.” United States v.
Prescott, 221 F.3d 686, 688 (4th Cir. 2000). There is no basis for equitable tolling in this
case as it appears that petitioner has at all times been quite capable of accessing the
courts. As the defense appears from the face of the pleadings and the court knows of no
reason why the government would waive enforcement in this case, the court will consider
the timeliness issue sua sponte. In an abundance of caution, the court has considered the
instant petition as if it had been filed August 30, 2011 (with a mailing date of August 20,
2011), the date the second Motion to Vacate was filed.
The court has considered whether this petition was timely filed under §2255(f)(1),
which provides“[a] 1-year period of limitation [shall run from] . . . the date on which the

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judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Petitioner’s judgment of
conviction became final not later than November 29, 2004, when the Supreme Court
denied certiorari. In calculating the 12 months from the date on which the Judgment of
Conviction becomes final, a conviction is final for § 2255(f)(1) purposes “on the date
when the petitioner could no longer seek direct review.” United States v. Walker, 1998
WL 756928, *1 (4th Cir.1998)(citations omitted). Thus, this petition is untimely.
The court has considered whether this petition was timely filed under §2255(f)(2),
which provides“[a] 1-year period of limitation [shall run from] . . . 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.”

28 U.S.C. § 2255(f)(2).

While

petitioner contends that the “misconstruction occurred from 2005 until the present,” the
record reveals that there was no impediment imposed on petitioner filing any motion
seeking collateral relief in the year following denial of certiorari.
The court has also considered whether petitioner’s claim would be timely under §
2255(f)(3), which provides as follows:
(f) A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of-***
(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[.]

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18 U.S.C. § 2255(f)(3). Petitioner has made no allegation of the retroactive application
of any newly recognized right.1
The court has also considered whether the § 2255 petition was timely filed under
§2255(f)(4), which provides “[a] 1-year period of limitation [shall run from] . . . 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(f)(4). None of petitioner’s
arguable claims (ineffective assistance of trial counsel and prosecutorial misconduct)
involve the discovery of any new evidence. The term “fact” as used in § 2255(f)(4) refers
to an actual or alleged event or circumstance, but not to the date a petitioner recognizes
the legal significance of such event. United States v. Pollard, 416 F.3d 48, 55 (D.C. Cir.
2005) (Sentelle, C.J., relying on and citing Black's Law Dictionary 7th Ed. at 610).
ORDER
IT IS, THEREFORE, IT IS HEREBY ORDERED that petitioner’s Motion to
Vacate, Set Aside, Or Modify Sentence under 28, United States Code, Section 2255 (#1),
is DISMISSED as untimely.

Declination of a Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, this court
declines to issue a certificate of appealability as petitioner has not made a substantial
showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller -El v.
1

Close review of the Presentence Report indicates the presence of no Simmons issues.

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Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484–85
(2000) (in order to satisfy § 2253(c) when court denies relief on procedural grounds, a
petitioner must demonstrate both that the dispositive procedural ruling is debatable, and
that the petition states a debatable claim of the denial of a constitutional right).

Signed: May 10, 2013

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