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PASCHAL v. U.S.

April 29, 2003

MOTTIO PASCHAL, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Wayne R. Andersen, United States District Judge

MEMORANDUM OPINION AND ORDER

This case is before the Court on petitioner Mottio Pasehal's motion for an extension of time to file his petition to vacate, set-aside or correct his sentence pursuant to 28 U.S.C. § 2255 and the United States' motion to dismiss Paschal's habeas petition. For the following reasons, the motion for an extension of time is denied and the petitioner's Section 2255 petition is denied.

BACKGROUND

On December 2, 1998, the petitioner, Mottio Paschal, and his brother, Leo Paschal, were arrested by officers of the Niles Police Department following an alleged bank robbery and subsequent vehicular pursuit. On December 3, 1998, a One-count criminal complaint was filed in this Court charging the petitioner and Leo Paschal with bank robbery in violation of 18 U.S.C. § 2113 (a). On February 11, 1999, a one-count indictment was filed. On February 19, 1999, the defendant was arraigned before Magistrate Judge Arlander Keys and he entered a plea of not guilty to the charges presented in the indictment. On July 28, 1999, Pasehal pled guilty, pursuant to a written plea agreement, to one count of bank robbery in violation of 18 U.S.C. § 2113 (a). We sentenced Paschal to 120 months imprisonment on March 20, 2000. The petitioner chose not to pursue a direct appeal of his sentence.

On March 9, 2001, almost one year after he was sentenced, this Court received a handwritten letter from Pasehal in which he requested an extension of time to file his petition for habeas corpus relief pursuant to 28 U.S.C. § 2255. In this letter, Pasehal advised us that he was "currently on writ in state court and cannot finish proceedings until I am returned to federal custody." The Clerk of the Court docketed Paschal's letter as a motion for "an extension of time to file his 2255 habeas corpus case."

On May 31, 2001, over one year after he was sentenced, Pasehal filed a typewritten "motion for leave for extension of time to file 28 U.S.C. § 2255 motion to vacate, set-aside or vacate [sic] sentence." In this motion, Pasehal again stated that, on November 8, 2000, he was summoned to state court on a writ and that he had been unable "to obtain the materials needed to complete the motion that was started prior to being called out on the writ."

On June 27, 2001, Pasehal finally filed his Section 2255 habeas corpus petition. In that petition, he raised the following four claims: 1) the Court and the government violated his written plea agreement when he was sentenced to a term of imprisonment in excess of that stated in the agreement; 2) obstruction of justice; 3) ineffective assistance of trial counsel; and 4) the Court lacked subject matter jurisdiction to sentence the petitioner on the charge of bank robbery. After the Section 2255 petition was filed, the government filed the instant motion to dismiss arguing that the petition was not filed within the one year statute of limitations contained in Section 2255 of the Antiterrorism and Effective Death Penalty Act of 1996.

DISCUSSION

Collateral relief under 28 U.S.C. § 2255, the federal version of habeas corpus, is available only in limited circumstances. The statute provides in. relevant part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the 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, may move the Court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255. Such relief is therefore limited to "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice" Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)).

In order for a petitioner to obtain Section 2255 collateral relief, he must file his petition within one year from the latest of four specified events: (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 the laws of the United States is removed, if 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. Although the statute itself does not define the term "final" for purposes of this case, we reel confident that the petitioner's conviction was finalized after the ten day period to appeal expired following his sentencing hearing. See Fed.R.App.P. 4(b)(1)(A)(i). That means that the petitioner's conviction became final as of April 4, 2000. Accordingly, the one year statute of limitations for the filing of Pasehal's habeas petition expired on April 4, 2001.

Obviously mindful of this deadline, Pasehal filed both his handwritten and typewritten motions for an extension of time in which to file his Section 2255 petition. While the Seventh Circuit has not yet addressed the issue, the weight of the authority around the country is that a district court does not have the authority to extend the deadline for filing a Section 2255 petition except for those instances which Congress expressly authorized. See Reed v. United States, 2001 WL 700811, at *2 (6th Cir. June 15, 2001) (unpublished opinion); Washington v. United States, 221 F.3d 1354, 2000 WL 985885, at * 1-2 (10th Cir. July 18, 2000) (unpublished Opinion); United States v. Leon, 203 F.3d 162, 163-64 (2d Cir. 2000); United States v. Duffus, 174 F.3d 333, 337-38 (3d Cir. 1999); United States v. Ailsworth, 1999 WL 1021073, at Z2 (D. Kan. Sep. 29, 1999); In re Application of Wattanasiri, 982 F. Supp. 955, 957-58 (S.D.N.Y. 1997). We agree with these courts and hold that we do not have jurisdiction to entertain Pasehal's request for an extension of time in which to file his Section 2255 petition. Therefore, the petitioner's motion for an extension of time to file his Section 2255 petition is denied.

However, that does not end the inquiry. While granting a motion for an extension of time is outside our power, the Seventh Circuit has stated in dicta that Section 2255's "period of limitation is not jurisdictional but is instead a procedural statute of limitations subject to equitable tolling." United States v. Marcello, 212 F.3d 1005, 1010 (7th (hr. 2000) (citing Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999)). This means that we can still consider Pasehal's late Section 2255 petition if he satisfies the Seventh Circuit's stringent requirements for equitable tolling in habeas cases.

Equitable tolling "excuses a[n] [un]timely filing when the plaintiff could not, despite the exercise of reasonable diligence, have discovered all the information he needed in order to be able to file his claim on time." Montenegro v. United States, 248 F.3d 585, 594 (7th Cir. 2001), overruled on other grounds by Ashley v, United States, 266 F.3d 671 (7th Cir. 2001). Equitable tolling "is granted sparingly" and must be based on "extraordinary circumstances." Id. We should note that the Seventh Circuit has declined to rule on the extent to which equitable tolling is applicable to Section 2255 petitions "given the express tolling provisions incorporated in ...


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