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Tilmon v. United States

February 15, 2006

FREDDIE TILMON, PETITIONER/DEFENDANT,
v.
UNITED STATES OF AMERICA, RESPONDENT/PLAINTIFF.



The opinion of the court was delivered by: Murphy, Chief District Judge

MEMORANDUM AND ORDER

This case has followed a tortuous path since it was first filed in August 2003. Notwithstanding Petitioner Freddie Tilmon's arguments, the Court found that his Section 2255 petition was time-barred and denied the motion. A series of post-judgment motions were also denied, and Tilmon then appealed. The Seventh Circuit eventually determined that the Section 2255 motion had been filed to challenge Tilmon's conviction in 2000, see United States v. Tilmon, Case No. 00-CR-30029 (S.D. Ill., filed Feb. 23, 2000), rather than his 1993 conviction. United States v. Tilmon, Case No. 92-CR-30156 (S.D. Ill., filed Dec. 16, 1992). The Circuit noted, however, that this Court's misinterpretation was understandable, "because Tilmon erroneously captioned the motion under his 1993 case...." See Tilmon v. United States, Appeal No. 04-3659 (7th Cir., filed March 8, 2004). Therefore, the Court's judgment was vacated, and this action was remanded to consider the Section 2255 motion as attacking the 2000 conviction. Tilmon then was granted leave to file a supplemental memorandum, and the Court begins anew to consider Tilmon's claims. As shown below, Tilmon's victory is short-lived.

PROCEDURAL BACKGROUND OF CRIMINAL CASE

On November 6, 2000, pursuant to a plea agreement,*fn1 Tilmon was sentenced to 262 months imprisonment on one count involving the distribution of cocaine; that sentence was to run consecutively to the sentence for his parole violation in his 1992 criminal case. No appeal was filed and, more than two years later, Tilmon filed a motion to reduce sentence, pursuant to Federal Rule of Criminal Procedure 35 (Doc. 63, criminal case, filed March 27, 2003). That motion was denied, and Tilmon then filed this action.

ARGUMENTS RAISED

The instant motion presents no specific grounds for granting relief under Section 2255. Instead, in his motion (Doc. 1) and in the supplemental memorandum (Doc. 30), Tilmon argues that the statute of limitations should be tolled so that he may file a complete memorandum expanding on all the issues to be raised in a Section 2255 motion.

Prior to the passage of the Antiterrorism and Effective Death Penalty Act, Pub. L 104-132, 110 Stat. 1214 ("the Act"), a motion under Section 2255 could be brought at any time. As Petitioner recognizes, however, since the Act was passed on April 24, 1996, Section 2255 now provides, in pertinent part:

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. "[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Clay v. United States, 537 U.S. 522, 525 (2003). In the instant case, Tilmon was sentenced on November 6, 2000, and no other action was taken. Therefore, for purposes of Section 2255, Tilmon's conviction became final in December 2000, see 28 U.S.C. § 2101(b), and his Section 2255 motion must have been filed within a year, or by December 2001.

Tilmon relies on the fourth statutory provision as a basis for tolling the statute of limitations. He argues that the statute of limitations should be tolled due to (1) ineffective assistance of counsel at the time of his sentencing three years ago, (2) his emotional trauma, (3) his limited education, (4) a lack of access to legal resources, and (5) a lack of understanding of the ramifications of his plea agreement. The Court finds, however, that none of these arguments establishes that Tilmon has ...


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