Opinion
Civil Action No. 01-00309-RV, Criminal Action No. 96-00134-RV
May 10, 2001
ORDER
This matter comes before the court on petitioner Gennerro Dyreall Joseph's motion for writ of habeas corpus by a person in federal custody under 28 U.S.C. § 2255 (Doc. 149). After careftilly reviewing the law the court concludes that the motion is untimely.
I. BACKGROUND
On December 9, 1996, after pleading guilty to a violation of 28 U.S.C. § 846, Joseph was sentenced to one hundred and twenty-one (121) months of imprisonment (Doc. 95). Judgment was entered on the docket on December 19, 1996. More than four years later, on May 1, 2001, he filed this § 2255 motion, alleging that his sentence should be corrected or vacated pursuant to the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
II. DISCUSSION
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") was enacted into law on April 24, 1996. Section 105 of the AEDPA amended 28 U.S.C. § 2255 by imposing a one-year period of limitation for § 2255 motions. That 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 such 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 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 dingence.28 U.S.C. § 2255.
Here, Joseph asserts that, (3) the Supreme Court, in Apprendi, announced a new right and made it retroactive to cases on collateral review. Thus, Joseph argues that the applicable starting date for the AEDPA's one-year limitations period should be the date that Apprendi was decided (June 26, 2000). However, the Court of Appeals for the Eleventh Circuit has already concluded that Apprendi does not apply retroactively to cases on collateral review. See In re Benhurshan Joshua, 224 F.3d 1281, 1282 (11th Cir. 2000) (holding that "the Supreme Court has not declaredApprendi to be retroactive to cases on collateral review. For a new rule to be retroactive, the Supreme Court must make it retroactive to cases on collateral review.... To date, the Supreme Court has not declared thatApprendi be applied retroactively to cases on collateral review."). In fact, the court notes that the Eleventh Circuit has since concluded thatJoshua stood for the proposition that Apprendi was not retroactive to any collateral review attacks. United States v. Candelario, 240 F.3d 1300, 1309-10 (describing Joshua as "holding that the Apprendi rule only applies to direct appeals and not collateral attacks, because the Supreme Court has not made Apprendi retroactive to collateral attacks"); United States v. Rogers, 228 F.3d 1318, 1328 (11th Cir. 2000) (same).
Therefore, Joseph's attempt to use Apprendi to toll the applicable one-year statute of limitations is unsuccessful. Under Fed.R.App.P. 4 (b)(1), (6), Joseph had ten days from the date judgment was entered in which to file an appeal, but none was ever filed. In Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir. 2000), the Court of Appeals found that in cases where no appeal is filed, judgment is not "final" until the time allowed for the filing of an appeal (ten days) expires. Accordingly, the latest date on which Joseph could file a timely § 2255 motion was December 30, 1997. Joseph, however, did not file this motion until May 1, 2001.
Because Joseph provides no other explanation as to why he did not file his motion before this time, he has not shown that the one-year period of limitations is subject to equitable tolling under Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) ("Equitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with dingence."). Joseph's § 2255 motion is therefore timebarred.
III. CONCLUSION
Joseph filed his § 2255 motion after the one-year period of limitations imposed by the AEDPA. Because Joseph has not successfully tolled the one-year time bar under 28 U.S.C. § 2255 (3), nor demonstrated that his motion is otherwise subject to equitable tolling, his § 2255 motion is DENIED. The CLERK is DIRECTED to close this file.