Opinion
Case No. 1:01-CV-30, (Criminal Case No. 1:96-CR-51).
March 28, 2001.
ORDER
In accordance with the Memorandum Opinion entered this day:
IT IS ORDERED that Petitioner's Motion To Vacate, Set Aside, Or Correct Sentence brought pursuant to 28 U.S.C. § 2255 (docket # 1) is DISMISSED with prejudice because it is timebarred, or in the alternative, is without merit.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED as to each issue raised by Petitioner in this application for habeas corpus relief because he has failed to make a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
MEMORANDUM
This is a proceeding brought by a federal prisoner pursuant to 28 U.S.C. § 2255. Promptly after the filing of a section 2255 motion, the Court must undertake a preliminary review of the motion to determine whether "it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief." Rule 4(b), RULES GOVERNING § 2255 PROCEEDINGS IN THE UNITED STATES DISTRICT COURTS. If the movant is not entitled to relief, the Court "shall make an order for its summary dismissal." Id. Dismissal without a hearing is appropriate if the Petitioner's allegations "cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the instant motion is time-barred, or in the alternative, is without merit.Facts
Petitioner is a tax protestor who was convicted after a jury trial before the Honorable Benjamin F. Gibson for wilful failure to appear for trial in violation of 18 U.S.C. § 3146(a)(1). The underlying charge for making a false claim against the Government was dismissed. (See United States v. Grooters, 1:95-CR-162). On February 26, 1998 (technically amended on March 11, 1998), the undersigned Judge sentenced Petitioner to five (5) months incarceration with a recommendation that Petitioner serve his sentence at a Community Sanction Center so that he could continue his employment. Petitioner was also sentenced to two(2) years of supervised release following his five-month period of incarceration. The period of supervised release carried the condition that Petitioner "shall cooperate with the Internal Revenue Service to pay his back taxes." Petitioner did not appeal his conviction or sentence.
Based upon a request by the U.S. Probation Officer, this Court issued a warrant for Petitioner's arrest on September 14, 2000, for violating conditions of supervised release in violation of 18 U.S.C. § 3583. This section contains provisions for the modification and revocation of supervised release. The Probation Officer alleged that Petitioner: (1) filed a false income tax return as a non-resident alien with no dependents, and (2) failed to comply with the special condition that he cooperate with the Internal Revenue Service (IRS) to pay his back taxes. At a hearing where Petitioner was represented by counsel, he pled guilty to failing to cooperate with the IRS. The government dismissed the charge that Petitioner filed a false income tax return. This Court revoked supervised release and sentenced Petitioner to incarceration of nine months. Petitioner did not appeal his sentence.
In the instant motion, Petitioner claims that he did not appeal because he was unaware of the judicial process and relied upon counsel. The claims presented in his motion are extremely vague, but Petitioner appears to allege that he was denied the effective assistance of counsel when counsel: (1) failed to file a motion to suppress; (2) failed to request "The Warrant Affidavit"; and (3) failed to move for Petitioner's release from custody after his original charges were dismissed. It is not clear from Petitioner's motion whether these claims of ineffective assistance of counsel arise from his original conviction and sentence for failing to appeal or from the sentence that resulted from his violation of supervised release.
Discussion
I. Statute of Limitations
Assuming Petitioner's claims of ineffective assistance of counsel arise from his original conviction and sentence, his § 2255 motion is time-barred. A threshold issue for § 2255 motions is whether the motion is filed within the one-year limitation period. See United States v. Flores, 135 F.3d 1000, 1002 (5th Cir. 1998), cert. denied, 525 U.S. 1091, 119 S.Ct. 846 (1999); United States v. Acevedo, No. 98-6557, 1998 WL 480321, at * 1 (4th Cir. Aug. 10, 1998); Weaver v. United States, No. 98-CV-369, 1998 WL 247471, at *1 (N.D.N.Y. May 8, 1998), cert. denied, 529 U.S. 1094, 120 S.Ct. 1733 (2000); Stewart v. United States, 973 F. Supp. 764, 766 (M.D.Tenn. 1997). Since the April 24, 1996, enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), PUB. L. No. 104-132, 110 STAT. 1214(1996), § 2255 motions have been subject to a one-year limitation period. "Prior to this amendment, a party could bring a § 2255 motion at any time." United States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997). As amended, § 2255 states as follows:
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 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 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.
The one-year period of limitation generally runs from the date on which the judgment of conviction becomes final. Neither the AEDPA nor § 2255 defines when a judgment becomes "final." See Gendron v. United States, 154 F.3d 672, 673 (7th Cir. 1998), cert. denied sub nom., Ahitow v. Glass, 526 U.S. 1113, 119 S.Ct. 1758 (1999). The AEDPA expressly defined finality for motions attacking state court convictions under § 2254, but did not define finality for motions attacking federal convictions under § 2255. Gendron, 154 F.3d at 674. In this case, sentence was imposed on February 26, 1998. The latest possible date that Petitioner's judgment of conviction could be considered "final" is March 8, 1998, the expiration of the ten-day period for filing a notice of appeal in a criminal action. See FED. R. APP. P. 4(b)(1)(A). Therefore, the one-year period of limitation expired on or about March 8, 1999. The instant motion was not filed until January 9, 2001, long after the one-year period of limitation expired. Therefore, Petitioner's motion is time-barred to the extent his claims of ineffective assistance of counsel arise from his original conviction and sentence.
II. Ineffective Assistance of Counsel
Assuming, in the alternative, that Petitioner's claims arise from his conviction for violating his supervised release, his § 2255 motion is not time-barred. However, to the extent the Court can decipher his claims, they are without merit. It is difficult to determine the precise nature of Petitioner's complaints concerning the revocation of his supervised release and his present incarceration. The best this Court can ascertain is that Petitioner believes that he was sentenced "Pursuant to the wrong CODE violation." However, 18 U.S.C. § 3583 provides this Court with ample authority to sentence Petitioner for violation of supervised release. Furthermore, Petitioner was arrested for alleged violations of supervised release pursuant to a "Petition for Warrant or Summons for Offender Under Supervision" prepared and submitted to this Court by a United States Probation Officer. At that time, Petitioner was a person subject to supervision by the United States Probation Office with restricted rights. After his arrest, Petitioner was brought before a Magistrate Judge who ordered that he be held pending a hearing. This Court fails to see any improper act or ineffective assistance of counsel arising from Petitioner's arrest, the revocation of his supervised release, or his current incarceration.
As a threshold matter, Petitioner did not raise his claims of ineffective assistance of counsel on appeal. A criminal defendant must generally raise all claims of error in his first appeal of right, upon pain of waiver. See United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584 (1982). Claims of ineffective assistance of counsel are an exception to this general rule. The Sixth Circuit usually requires such claims to be raised for the first time in a post-conviction proceeding under 28 U.S.C. § 2255. See, e.g., United States v. Tucker, 90 F.3d 1135, 1143 (6th Cir. 1996); United States v. Thomas, 74 F.3d 701, 715 (6th Cir.), cert. denied, 519 U.S. 820, 117 S.Ct. 74 (1996); see also United States v. Pineda, No. 97-1833, 1998 WL 869980, at *3 (6th Cir. Dec. 1, 1998). Consequently, the general rule that a failure to raise an issue on direct appeal operates as a waiver to assert the issue in a § 2255 motion does not apply to claims of ineffective assistance of counsel.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner's § 2255 motion pursuant to Rule 4 because it is time-barred, or in the alternative, is without merit.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should be granted if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). To warrant a grant of the certificate, "[t]he 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, 120 S.Ct. 1595, 1604 (2000). The Court finds that reasonable jurists could not find that this Court's dismissal of Petitioner's claims was debatable or wrong, and therefore, the Court will deny Petitioner a certificate of appealability.
An Order consistent with this opinion will be entered.