The opinion of the court was delivered by: Murphy, District Judge
This matter is before the Court on Petitioner Greg Murray's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
On August 9, 2004, a jury found Murray guilty of a charge of possession with intent to distribute cocaine (Count 2 of the third superseding indictment) (see Docs. 242-244).*fn1 On August 11, 2005, a jury found Murray guilty on two counts of the fourth superseding indictment, which charged Murray with conspiracy to possess with intent to distribute and distribution of cocaine (Count 1) and use of a firearm in furtherance of a drug trafficking crime that caused the death of a person by murder (Count 2) (see Docs. 333-335). On January 4, 2006, Murray was sentenced to life imprisonment, a fine of $1000, and a special assessment of $300. Murray's conviction and sentence were affirmed on direct appeal. United States v. Murray, 474 F.3d 938, 941 (7th Cir. 2007). He did not seek review by the Supreme Court, and he filed the instant motion on February 6, 2009.
Prior to the passage of the Antiterrorism and Effective Death Penalty Act, Pub. L 104-132, 110 Stat. 1214 ("the Act"), a motion under § 2255 could be brought at any time. However, since the Act was passed on April 24, 1996, § 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. "[F]or federal criminal defendants who do not file a petition for certiorari with [the Supreme] Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires." Clay v. United States, 537 U.S. 522, 525 (2003); see Supreme Court Rule 13 ("a petition for writ of certiorari to review a judgment in any case, civil or criminal. is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review.").
In the instant case, Murray's conviction was affirmed on January 24, 2007. Murray, 474 F.3d at 941. He did not seek review from the Supreme Court, but the Court still must consider the 90 days he had to do so. Therefore, for purposes of § 2255, his conviction became final in April 2007, and he needed to file his § 2255 motion by April 2008. Murray filed the instant motion on February 6, 2009. Thus, he filed this motion ten months too late.
Murray recognizes this problem and explains that in April 2007, he was placed in administrative detention and transferred to another institution. His legal property did not immediately follow him. Thereafter, pursuant to a writ, Murray was transferred out of Bureau of Prisons custody from July 2007 through April 2008. Upon return to federal custody, Murray was placed in segregation until late June 2008; he was then transferred to yet another federal institution in July 2008. Throughout this time period, Murray asserts that he did not have access to his legal property and, thus, was unable to file a timely § 2255 motion.
On January 8, 2008, Murray filed a motion seeking additional time to file his § 2255 motion (Doc. 398). In that motion, he explained his predicament of transfers and lack of ...