United States District Court, N.D. Illinois
August 3, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Deetreca Faye Malone, a federal prisoner, filed a pro se
"motion" in which she sought a "sentence reduction" because her
trial attorney failed to advise her of a potential four-level
increase in her sentence based on U.S.S.G. § 2K2.1(b)(5). Because
Malone's motion was the functional equivalent of one under
28 U.S.C. § 2255, this court, in an order dated July 1, 2004, gave
Malone the option of withdrawing or amending the motion. Malone,
in turn, filed an amended motion pursuant to § 2255 in which she
added a claim challenging her sentence under Blakely v.
Washington, 124 S. Ct. 2531 (2004).
Recognizing that her motion is untimely under paragraph 6 of §
2255, Malone asserts as to her ineffective assistance of counsel
claim that "for the last 24 months [she] has been housed in a
state prison [and she] wasn't able to get in the law library." As
for the untimeliness of her Blakely claim, Malone contends that
she should be excused because of the novelty of the ruling in
Paragraph 6 of § 2255 creates a one-year statute of limitations
for a motion filed under § 2255. The one-year period is measured
from the date on which the judgment of conviction becomes final
unless one of the other enumerated grounds extends the one-year
Here, the original motion was filed over one year after the
date on which Malone's judgment became final and none of the
grounds for extension are applicable. An inability to access the
law library because she was in state prison, standing alone, does
not fit within any of the extension provisions of paragraph 6 nor
in any other way justifies excusing the one-year limitations
As for her Blakely claim, while the right recognized in that
case is arguably a new one, the Supreme Court has not made it
retroactive to cases on collateral review as required by
paragraph 6, section 3 of § 2255. Thus, Malone's Blakely claim
is also untimely. Nor will it likely be given retroactive effect.
See Shriro v. Summerlin, 124 S. Ct. 2519 (2004).
For the foregoing reasons, the court dismisses Malone's § 2255
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