Opinion
No. CR91-3022-MWB
August 25, 2000
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
I. INTRODUCTION AND FACTUAL BACKGROUND
In an indictment returned on October 31, 1991, charging defendant Cano Graham with several drug offenses. On February 21, 1992, a Second Superceding Indictment was filed, again charging defendant Graham with several drug offenses. On April 6, 1992, defendant Graham entered guilty pleas to Count 5, charging defendant Graham with conspiracy to launder money in violation of 18 U.S.C. § 371, and Count 17, charging defendant Graham with a drug conspiracy in violation of 18 U.S.C. § 846, of the Second Superceding Indictment. On July 8, 1992, defendant Graham was sentenced to a term of imprisonment of 120 months on Count 5 and 180 months imprisonment on Count 17, the terms of imprisonment were to be concurrent. Defendant Graham did not appeal either his conviction or sentence.
On February 28, 1994, the court granted the government's motion for reduction of sentence pursuant to Federal Rule of Criminal Procedure 35(b). As a result, defendant Graham's sentence was reduced to a total term of imprisonment of 156 months. On March 1, 1994, the court entered a written order confirming defendant Graham's reduced sentence. Defendant Graham did not appeal the reduction in sentence he received.
Pursuant to 28 U.S.C. § 2255, defendant Graham then filed his pro se petition To Vacate, Set Aside Or Correct Sentence on October 19, 1998. Defendant Graham raises two separate claim in his § 2255 petition: first, that the sentencing court erred in assessing him a two level enhancement for a possessing a firearm under U.S.S.G. § 2D1.1(b)(1); and, second, that the sentencing court should have disregarding two prior criminal offenses and found defendant Graham eligible for the a two-level reduction pursuant to the "safety valve," U.S.S.G. § 2D1.1(b)(6). On January 11, 2000, the court granted defendant Graham's request to amend his petition, On February 23, 2000, defendant Graham filed an amended petition To Vacate, Set Aside Or Correct Sentence in which he claims that the sentence he relieved was longer than that he bargained for with the government. The government has filed a response to defendant Graham's amended petition in which it asserts that Graham's petition should be denied as time barred, or in the alternative, on the merits.
Telephonic oral arguments on defendant Graham's motion was held on August 24, 2000. The United States was represented by Assistant United States Attorney Richard L. Murphy. Defendant Graham was represented by Mark Meyer, Cedar Rapids, Iowa.
II. LEGAL ANALYSIS A. Standards Applicable To § 2255 Motions
The Eighth Circuit Court of Appeals has described 28 U.S.C. § 2255 as "the statutory analogue of habeas corpus for persons in federal custody." Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987). In Poor Thunder, the court explained the purpose of the statute:
[Section 2255] provides a remedy in the sentencing court (as opposed to habeas corpus, which lies in the district of confinement) for claims that a sentence was `imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.'
Id. at 821 (quoting 28 U.S.C. § 2255). Of course, a motion pursuant to § 2255 may not serve as a substitute for a direct appeal, rather "[r]elief under [this statute] is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised for the first time on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
Section 2255 contains a one-year time limit for filing motions under that section. This provision became effective April 24, 1996, with the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, Title I, § 105, 110 Stat. 1220. Federal defendants whose convictions became final before the enactment of the AEDPA were given a one-year grace period from its effective date to file their § 2255 motions. See Moore v. United States, 173 F.3d 1131, 1133 (8th Cir. 1999); Paige v. United States, 171 F.3d 559, 560-61 (8th Cir. 1999); United States v. Craycraft, 167 F.3d 451, 456 (8th Cir. 1999). Following the Second and Fifth Circuits, the Eighth Circuit Court of Appeals has held that April 24, 1997, is the final date for filing a § 2255 petition regarding a conviction that became final before the enactment of the AEDPA. United States v. Lurie, 207 F.3d 1075, 1077 n. 3 (8th Cir. 2000); Moore, 173 F.3d at 1133.
Section 2255 provides in pertinent part:
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, 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 diligence.
B. Timeliness Of Petition
The government argues that because defendant Graham did file his § 2255 petition until October 19, 1998, his petition is untimely. Here, because Graham's conviction became before the effective date of the AEDPA, April 24, 1996, Graham could have filed a timely petition within the one-year "grace" limitations period, from the effective date of the AEDPA until April 24, 1997. Moore, 173 F.3d at 1133 Graham failed to do so. Consequently, Graham's petition is only timely if the limitations period was tolled for all but a period of less than one year between April 24, 1996, and October 19, 1998, the date on which the petition in this action was filed.
Graham argues that the limitations period in this case should be tolled under the the doctrine of equitable tolling or, alternatively, tolled because of a government impediment prevented him from making an earlier filing.
Initially, the court rejects defendant Graham's argument that the doctrine of equitable tolling should excuse his untimely filing because defendant Graham has not shown that extraordinary circumstances beyond his control prevented him from complying with the filing deadline. See Paige, 171 F.3d at 561 (holding that "[i]n the habeas context, equitable tolling is proper when "`extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time.") (quoting Calderon v. United States Dist. Court for the Cent. Dist. of Ca., 127 F.3d 782, 786 (9th Cir. 1997), cert. denied, 523 U.S. 1063 (1998)).
With respect to his claim that the limitations period should be tolled because of a government impediment prevented him from making an earlier filing, defendant Graham asserts that he waited to file his claim because he thought the government would move to reduce his sentence to the length that he believes that he was promised. The court does not accept Graham's conclusory allegations that government action prevented him from filing his petition. In his brief, defendant Graham points to a letter dated April 21, 1994, in which defendant Graham indicated to his counsel that he had written to the prosecutor and that he believed he would receive another sentence reduction. It must be noted that this letter was dated over three years before the limitation period expired. Thus, these general assertions fail to demonstrate actions of the government that meaningfully hindered defendant Graham's access to the courts. Therefore, the court holds defendant Graham's petition is time-barred because it was not filed within one year from the effective date of the enactment of the AEDPA.
III. CONCLUSION
The court finds that the limitations period found in 28 U.S.C. § 2255 is not subject tolling in the case under the doctrine of equitable tolling. The court further finds that defendant Graham has not demonstrated that a government impediment prevented him from making a timely filing. Thus, the court concludes that defendant Graham's petition is time-barred because it was not filed within one year from the effective date of the enactment of the AEDPA. Therefore, defendant Graham's § 2255 motion is denied, and this matter is dismissed in its entirety.
IT IS SO ORDERED.