Opinion
03-CV-6290T, 98-CR-6067T.
August 10, 2004
DECISION and ORDER
INTRODUCTION
On October 28, 1999, defendant Richard B. Jones, ("Jones"), pled guilty to all counts of a four-count Indictment charging him with illegal possession of firearms and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1). On January 18, 2000, pursuant to his plea of guilty, Jones was sentenced to a term of 192 months imprisonment on each of the four counts to run concurrently. Petitioner did not appeal his sentence.
By petition dated June 17, 2003, Jones moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on grounds that he was denied effective assistance of counsel. Specifically, petitioner contends that his counsel: (1) failed to advise him of the possibility of entering a conditional plea pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure; (2) failed to object to the inclusion of past felonies in determining that he qualified as an "armed career criminal" for purposes of sentencing; (3) failed to object to the prosecution on multiple counts of simultaneous possession of firearms and ammunition; (4) failed to object to the inclusion of several past convictions on grounds that those convictions were obtained without the benefit of counsel; (5) failed to challenge the constitutionality of §§ 922(g) and 924(e) on grounds that those statutes are unconstitutional under the Commerce Clause; (6) failed to inform him of his right to appeal his conviction, and (7) affirmatively informing him that he could not appeal his sentence.
The Government opposes petitioner's motion on grounds that the petition is untimely, is procedurally barred, and is without merit. The Government argues that the court may not grant the petitioner's request for relief, but requests dismissal of Counts II, III, and IV of the Indictment on grounds that it was error to sentence Jones to four concurrent sentences of 192 months. The Government contends that Jones should have instead been sentenced to a single term of 192 months based on a violation of Count I of the Indictment.
DISCUSSION
28 U.S.C. § 2255 provides in relevant part that a motion made pursuant to § 2255 must be made within one year of the date upon which the judgment of conviction became final, or one year from the date on which a governmentally-imposed impediment to making such a motion is removed. In the instant case, petitioner filed his motion on June 18, 2003, three and one-half years after his sentencing date of January 18, 2000, and two and one-half years after the date on which his time to file a petition pursuant to § 2255 expired. Jones claims that he was prevented from filing his petition within the one-year time period because he was denied access to federal legal materials while in the custody of the State of New York, and that he was only able to access federal materials when he was taken into federal custody in February, 2003. Jones' explanation, however, is contradicted by his admission that he was never informed of the one-year time limitation, and that he had been informed by a "jailhouse lawyer" that he could not seek relief under § 2255 until he was actually in federal, as opposed to State custody. See Petitioner's Response as to why his motion should not be barred pursuant to 28 U.S.C. § 2255 (docket item no. 30) at p. 2. Moreover, petitioner's general allegations that he was denied access to law books at two different prisons is insufficient to establish that there existed a governmentally-imposed barrier that prevented him from filing his § 2255 petition. Accordingly, his petition which was filed two and one-half years after the expiration of the one-year limitations period is denied as time barred.
CONCLUSION
Because Jones' petition is time barred, I dismiss his petition for relief under 28 U.S.C. § 2255. Because, however, the Government has raised an issue suggesting that petitioner's sentence is in error, I direct the Government to file a formal motion for dismissal of Counts II, III, and IV of the Indictment, and to serve copies of that motion on the petitioner and the attorney representing the petitioner at the time he entered his plea, Assistant Federal Public Defender Mark Hosken. The Clerk of the Court is further directed to forward a copy of this Order to attorney Hosken.
ALL OF THE ABOVE IS SO ORDERED.