Glover v. USA

Filing 3

Memorandum Opinion and Order DISMISSING 2 Motion To Extend Time filed by Calvin Henry Glover: For the reasons stated below, the Court DISMISSES this case for lack of jurisdiction. (Ordered by Judge Matthew J. Kacsmaryk on 11/25/2024) (cmk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
CALVIN HENRY GLOVER,
Petitioner,

|

v.

2:24-CV-245-Z
(2:23-CR-13-Z-BR-1)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM

OPINION AND ORDER

Before the Court is Petitioner Calvin Henry Glover’s motion for an extension of time to
file a motion to vacate, set aside, or correct sentence under 28 U.S.C. Section 2255 (ECF No. 2).

For the reasons stated below, the Court DISMISSES this case for lack of jurisdiction.
BACKGROUND

After pleading guilty under a plea agreement to one count of possession of a firearm by a
convicted felon, Petitioner was sentenced to 180 months of imprisonment and three years of
supervised release by judgment dated October 4, 2023. See CR ECF No. 75. He did not appeal his

conviction or sentence. Petitioner now seeks a 120-day extension to file a motion to vacate, set
aside, or correct sentence under 28 U.S.C. Section 2255 for unspecified reasons. He states that he
wishes to challenge the constitutionality of his sentence “in regards to a felon in possession of
firearms.” See ECF No. 2.
JURISDICTION
|

Under Article III of the Constitution, federal court jurisdiction is limited to “cases” and
“controversies,” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 395 (1980), and federal

courts “possess only that power authorized by Constitution and statute, which is not to be expanded
by judicial decree,”

Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

(internal citations omitted). Congress enacted the Antiterrorism and Effective Death Penalty Act
of 1996 (““AEDPA”), Pub. L. 104-132, 110 Stat. 1214, which imposed, among its other substantial

changes to the way federal courts handle habeas motions, a one-year statute of limitations for
Section 2255 motions filed after its effective date. Specifically, the AEDPA states that the oneyear limitation period runs from the latest of

(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
collateral review; or

made

retroactively

applicable

to cases

on

(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(f).
The
exceptional

AEDPA’s

one-year deadline is not a jurisdictional bar and can, in appropriate

circumstances,

be equitably

tolled.

Holland

v. Florida,

560

U.S.

631

(2010)

(deciding that the timeliness provision in the AEDPA is subject to equitable tolling). Section 2255
does not authorize federal courts to prospectively extend, stop, or toll the one-year statute of
limitations, however. See 28 U.S.C. § 2255(f). Rather, federal courts lack jurisdiction to consider

a request for an extension of time until a Section 2255 motion is filed because such a request
presents no case or controversy and would result in the issuance of an advisory opinion. See United

States v. Bautista, 548 F. App’x 254 (5th Cir. 2013) (per curiam) (“The district court lacked
jurisdiction to entertain [the movant’s] motion for an extension of time to file a § 2255 motion.”);
United States v. McFarland, 125 F. App’x 573, 574 (5th Cir. 2005) (per curiam) (“Before the
[Section 2255] petition itself is actually filed, ‘there is no case or controversy to be heard, and any

opinion we were to render on the timeliness issue would be merely advisory.’”).
Here, a ruling on Petitioner’s request for an extension of time would require the Court to
determine in advance whether the Section 2255 motion will be time-barred, and whether equitable
tolling may be applicable. As noted, Section 2255 does not authorize a prospective extension of

the statute of limitations because there is no concrete dispute to be decided. Accordingly, the Court
lacks subject matter jurisdiction to grant any relief and this case is DISMISSED for lack of
jurisdiction.
The clerk of the court is DIRECTED to transmit to Petitioner a copy of the AO 243
standard form for cases filed under 28 U.S.C. Section 2255 in the event he wishes to file a Section

2255 motion.!
SO ORDERED.
November V4) , 2024.

firme?

MAPTHEW J. KACSMARYK

UNITED STATES DISTRICT JUDGE

' Any such motion will be subject to the one-year statute of limitations set forth in 28 U.S.C. Section 2255(f)(1).
3