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U.S. v. MALONE

United States District Court, N.D. Illinois


August 3, 2004.

United States
v.
Malone.

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 Blakely.

  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 period.

  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 period.

  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 motion.

20040803

© 1992-2004 VersusLaw Inc.



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