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U.S. v. GRIFFIN

June 8, 1999

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DERRICK WAYNE GRIFFIN, DEFENDANT.



The opinion of the court was delivered by: Alesia, District Judge.

MEMORANDUM OPINION AND ORDER

Before the court is the United States' motion to dismiss defendant Derrick Griffin's motion to vacate, set aside or correct his sentence, which he filed pursuant to 28 U.S.C. § 2255 ("§ 2255"). For the following reasons, the court denies the government's motion.

I. BACKGROUND

On July 23, 1993, defendant Derrick Griffin ("Griffin") pleaded guilty to violating 18 U.S.C. § 371 and 1962(c). On October 26, 1993, this court sentenced Griffin to a 300-month term of imprisonment. At the preliminary hearing, arraignment, plea, and sentencing phases, attorney Richard F. Walsh ("Walsh") represented Griffin. Neither Griffin nor Walsh filed a notice of appeal on behalf of Griffin.

From 1993 until 1997, Griffin was in the custody of the State of Illinois. Sometime during 1997, Griffin entered the federal system.

On November 27, 1998, Griffin filed a letter, asking this court to grant him leave to file a § 2255 motion. The court informed Griffin that the court cannot consider ex parte communications and that if he wished to request leave to file a § 2255 motion, he must do so by way of motion. On January 27, 1999, Griffin filed a motion for leave to file an untimely § 2255 motion. On February 23, 1999, this court granted Griffin leave to file a § 2255 motion. At that point, the court made no determination as to whether the motion was timely or not. The court simply allowed Griffin to file the § 2255 motion, leaving it up to the government to raise whatever objections to the motion that there may be, including an objection to the motion's timeliness.

On March 5, 1999, Griffin filed the present § 2255 motion and a memorandum of law in support thereof. On May 25, 1999, the government responded to Griffin's § 2255 motion. In its response, the government moved this court to dismiss Griffin's § 2255 motion as untimely. The court addresses the government's motion to dismiss in the discussion that follows.

II. DISCUSSION

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which established a one-year period of limitation for filing a motion under 28 U.S.C. § 2255. Gendron v. United States, 154 F.3d 672, 673 (7th Cir. 1998). In pertinent part, AEDPA amended § 2255 to read 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, 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.

28 U.S.C. § 2255. For prisoners whose judgment of conviction became final prior to the effective date of AEDPA, the one-year period of limitation contained in § 2255 began to run on April 24, 1996, the date on which AEDPA was enacted. See Gendron, 154 F.3d at 673.

In this case, Griffin's judgment of conviction became final well before the enactment of AEDPA. Thus, Griffin had from one year after April 24, 1996 to file his § 2255 motion.*fn1 Griffin, however, did not file his § 2255 motion until March 5, 1999, well after the one-year time period had expired. In documents that he submitted to the court, Griffin acknowledges that his § 2255 motion was not filed within the one-year time period. (See Def.'s Mot. in Supp. for Leave To File Out of Time Mot. at 1.) Griffin, however, asks this court to excuse his untimeliness because (1) he was not aware of AEDPA's enactment until after he ...


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