United States District Court, N.D. Illinois, Eastern Division
August 5, 2005.
UNITED STATES OF AMERICA
PAUL KELLY, Defendant.
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Paul Kelly pleaded guilty to conspiracy to import
heroin and cocaine in violation of 21 U.S.C. § 963, and was
sentenced to 192 months in prison. He appealed that sentence and
the Seventh Circuit affirmed. United States v. Kelly,
337 F.3d 897 (7th Cir. 2003). Petitioner then filed a pro se motion
to vacate, set aside or correct his sentence, pursuant to
28 U.S.C. § 2255.
Petitioner filed his 2255 motion on January 13, 2004, arguing
that he is entitled to relief on four grounds: ineffective
assistance of counsel, speedy trial violations, the government's
failure to fulfill a downward departure agreement, and improper
sentencing enhancements.*fn1 On September 30, 2004, the
court held petitioner's speedy trial and
ineffective-assistance-of-counsel arguments (as they related to
counsel's failure to challenge claimed violations of the Speedy
Trial Act) frivolous. The court also concluded that the downward
departure argument had been determined against petitioner on
direct appeal and could not be raised again. But we found that
the sentencing enhancement issues required additional briefing
and directed the government to respond on or before October 20, 2004. Assistant
U.S. Attorney Scott Levine proceeded to file a number of motions
to extend the filing deadline, which the court granted over
petitioner's objections. The government did not file its response
until July 28, 2005. Before petitioner files his reply brief, the
court deems it necessary to address the government's response and
order additional briefing.
A 2255 motion must be filed within one year after the
conviction becomes final. 28 U.S.C. § 2255, ¶ 6(1). "Finality
attaches when [the Supreme Court] affirms a conviction on the
merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition
expires." Clay v. United States, 537 U.S. 522, 527 (2003); see
also Robinson v. United States, 2005 U.S. App. LEXIS 15576,
2005 WL 1790156, No. 04-1223 (7th Cir. 2005). The government
states that petitioner's conviction became final on December 20,
2003, which is when the period to file a petition for a writ of
certiorari ended. According to the government, petitioner filed
the 2255 motion over one year after December 20, 2003. But
petitioner filed on January 13, 2004, only 24 days after
finality, and the government's position is therefore without
merit. The government relies on this miscalculation in its
response to petitioner's fourth ground for relief.
According to the government, it only possesses several pages of
the May 2, 2002, sentencing hearing transcript, and it further
asserts that "in order to fully substantively brief this issue,
the government would need the complete sentencing transcript"
(govt. resp. at 3). The government mentions the steps it has
taken to locate the transcript, and states it "will make further
efforts to obtain the transcript and fully brief this issue." It
has not asserted that it has ordered a copy. It also asserts that
briefing is not required because the motion is time-barred.
Additional briefing on the sentencing issue is required, and the
government is ordered to supplement its response on that matter.*fn2 That
supplement must be filed by August 22, 2005. The court emphasizes
that no deadline extensions will be forthcoming. Petitioner will
then file his reply on or before September 22, 2005.
For the foregoing reasons, the government is ordered to file
its supplemental brief in response to petitioner's sentencing
enhancement arguments by August 22, 2005.