The opinion of the court was delivered by: James F. Holderman, Chief Judge:
MEMORANDUM OPINION AND ORDER
Petitioner Jean-Marie Vianney Mudahinyuka has filed a "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody." (Dkt. No. 1.) The government has responded and, for the reasons set forth below, petitioner Mudahinyuka's motion is dismissed as untimely.
On October 7, 2004, Jean-Marie Vianney Mudahinyuka ("Mudahinyuka") pleaded guilty to two counts of making false statements when applying for a document required for admission to the United States, in violation of 18 U.S.C. § 1546(a), one count of making false statements in an interview with an officer of the Immigration and Naturalization Service, in violation of 18 U.S.C. § 1001(a)(2), and one count of assault on federal officers using a deadly weapon and inflicting bodily injury, in violation of 18 U.S.C. § 111(b). United States v. Mudahinyuka, 04 CR 471 (N.D. Ill.) (Dkt. Nos. 34, 36).
Specifically, Mudahinyuka admitted that, on June 7, 1999, he assumed the false name of "Thierry Rugamba," falsely claimed to have been born in Burundi, and falsely claimed to be a citizen of Burundi when applying for a United Nations High Commission on Refugees ("UNHCR") Resettlement Registration Form; that, on April 4, 2000, he again assumed the false name of "Thierry Rugamba," falsely claimed to have been born in Burundi, and falsely claimed to be a citizen of Burundi when filling out an "Immigration and Naturalization Form I-590, Registration for Classification as Refugee" and an "Immigration and Naturalization Form G-646, Sworn Statement of Refugee Applying for Entry into the United States;" that, on April 12, 2000, he falsely stated and represented in an interview with an Immigration and Naturalization Service Officer that his name was "Thierry Rugamba;" and that, during the course of his May 12, 2004 arrest, he forcibly resisted United States Immigration and Customs Enforcement agents and caused them bodily harm by grabbing the shotgun of one of the agents and hitting the agent across the head with it and breaking the finger of another agent during the course of the ensuing struggle. United States v. Mudahinyuka, 04 CR 471 (N.D. Ill.) (Dkt. No. 36 ("Plea Agreement")
¶ 5). Mudahinyuka's real name is Jean-Marie Vianney Mudahinyuka, he was born in Rwanda, and he is a citizen of Rwanda. (Id.)
On June 14, 2005, this court sentenced Mudahinyuka to 51 months of imprisonment, followed by a three-year term of supervised release. United States v. Mudahinyuka, 04 CR 471 (N.D. Ill.)(Dkt No. 48). In accordance with the waiver provisions set forth in his Plea Agreement, Mudahinyuka did not appeal his conviction or sentence. (Plea Agreement ¶¶ 11-12.)
Because Mudahinyuka had been convicted of an "aggravated felony" as set forth in 8 U.S.C. § 1101(a)(43), the Department of Homeland Security ("DHS") thereafter commenced expedited removal proceedings against Mudahinyuka pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and ultimately ordered Mudahinyuka removed to Rwanda. See Mudahinyuka v. Holder, No. 09-3255 (7th Cir.) (Dkt. No. 36 ("8/10/2010 Order") at 2.) Mudahinyuka then applied for withholding of removal and protection under the Convention Against Torture ("CAT"), arguing that he would be subject to persecution and torture if returned to Rwanda, where he has been accused of participating in the 1994 Rwandan genocide. (Id.)
The immigration judge ("IJ") presiding over Mudahinyuka's case held that Mudahinyuka was ineligible for withholding of removal under either the Immigration and Nationality Act or the CAT, because his conviction under 18 U.S.C. § 111(b) for assaulting federal officers was a "particularly serious crime." (Id. at 4.) In the alternative, the IJ found Mudahinyuka to be barred from relief under the Immigration and Nationality Act because he participated in the persecution of Tutsis in the 1994 Rwandan genocide. (Id.) Finally, the IJ also determined that Mudahinyuka did not qualify for deferral of removal under the CAT because he failed to demonstrate that it is more likely than not he will be tortured if removed to Rwanda. (Id.)
The IJ's decision was upheld in all material respects by the Board of Immigration Appeals ("BIA"), which adopted and supplemented the IJ's decision. (Id.) Mudahinyuka then appealed the BIA's decision to the United States Court of Appeals for the Seventh Circuit. Noting its lack of jurisdiction, the Seventh Circuit declined to disturb the IJ's decision regarding Mudahinyuka's commission of a "particularly serious crime" and the resultant statutory bar, and declined to address the IJ's alternative holding that Mudahinyuka was ineligible for withholding of removal because he participated in the 1994 genocide. (Id. at 5 n.1.) The Seventh Circuit denied Mudahinyuka's petition for review as it pertained to his request for deferral of removal under the CAT, finding that Mudahinyuka had a reasonable opportunity before the IJ to present evidence in his favor and that the IJ applied the correct standard for the admission of expert testimony. (Id. at 5-7.)
Mudahinyuka filed the pending § 2255 motion on September 14, 2010. United States v. Mudahinyuka, 10 C 5812 (N.D. Ill.) (Dkt. No. 1 ("Mudahinyuka Pet.")). It is this court's understanding that, as of the date of this order, Mudahinyuka remains in federal custody awaiting removal to Rwanda.
Under § 2255, "[a] prisoner in custody under sentence of a [federal] court . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence" by arguing that "the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a) (in relevant part). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon." 28 U.S.C. § 2255(b); see Lafuente v. United States, 617 F.3d 944, 946 (7th Cir. 2010).
Generally, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review under § 2255 in the absence of cause and prejudice. Massaro v. United States, 538 U.S. 500, 504 (2003). However, a claim for ineffective assistance of trial ...