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United States v. Drakulich

January 14, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RICHARD DRAKULICH, DEFENDANT.



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

ORDER

I. Background

This matter comes before the Court on Defendant Drakulich's motion to toll the statute of limitations for filing a habeas corpus motion to vacate pursuant to 28 U.S.C. § 2255. (Doc. 141). Defendant's motion informed the Court that Defendant intended to file a Section 2255 motion, but that he was awaiting information pursuant to a Freedom of Information Act ("FOIA") request that he made on May 30, 2008. Defendant Drakulich argued that the Government had yet to provide the information he requested pursuant to his FOIA request and that the Court should toll the Section 2255 statute of limitations. 5 U.S.C. § 552 provides that agencies receiving a FOIA request must "determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor. . . " Defendant's FOIA request was dated May 30, 2008. Defendant's limitations period was set to expire on June 29, 2008.

The Court required further information regarding the FOIA request and ordered that the Government respond to Defendant's motion stating why the information was not previously turned over, why the Defendant had to file a FOIA request, and the status of the request. (Doc. 142). Further, the Court ordered Defendant to file a supplemental brief explaining why he waited until May 30, 2008 to file a FOIA request. (Doc. 142).

The Government filed a response to the Court's order on August 28, 2008. (Doc. 143). Defendant filed his supplemental brief on September 2, 2008. (Doc. 144). Further, the Defendant filed a reply to the Government's response on September 26, 2008 and a motion to strike the Government's affidavit from Phillip Kavenaugh III, Defendant's court-appointed counsel. (Docs. 146 & 145). Having considered the arguments, the Court DENIES Defendant's Motion to Toll the Statute of Limitations for Filling a Habeas Corpus Motion to Vacate Pursuant to 28 U.S.C. § 2255.

II. Analysis

Defendant asks that the Court toll the statute of limitation for filing a habeas corpus motion to vacate pursuant to 28 U.S.C. § 2255. Applications for a writ of habeas corpus are subject to a 1-year period of limitation. 28 U.S.C. § 2255(f) provides, in relevant part, that:

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;

28 U.S.C. § 2255(f). Defendant's limitation period was set to expire on June 29, 2008. Defendant filed his motion for an extension of time in which to file his § 2255 petition on June 24, 2008, five days before the expiration of his limitation period.

A. Motion to Suppress or Strike Affidavit

Defendant has filed a motion asking the Court to strike Attorney Phillip J. Kavenaugh's affidavit (Doc. 145). The Government, in response to the Court's Order to explain why information was not turned over to Defendant, attached an affidavit from Mr. Kavenaugh, who acted as counsel for Defendant from March 21, 2003 until he was replaced at Defendant's request. In the affidavit, Mr. Kavenaugh stated that the Government had an "open file" policy and that numerous pieces of evidence were given to the Defendant by the Government before trial. Defendant argues that the affidavit should be stricken because it violates the attorney-client privilege. Contrary the Defendant's argument that the affidavit contains information regarding the "scope and existence" or the attorney-client relationship, the affidavit merely acknowledges that the Government had an "open file" policy and that the Government turned ...


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