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Charmaine Rickette v. United States of America

February 25, 2011

CHARMAINE RICKETTE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court is pro se Petitioner Charmaine Rickette's motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 and Respondent's motion to dismiss Rickette's Section 2255 motion as untimely. See 28 U.S.C. § 2255(f). For the following reasons, the Court grants Respondent's motion to dismiss. In addition, Rickette waived her right to bring the present Section 2255 motion in her written plea agreement, and thus the Court denies Rickette's Section 2255 motion on this basis, as well. Finally, the Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

FACTUAL BACKGROUND

On February 21, 2008, a grand jury returned an indictment charging Rickette with one count of conspiracy to commit bank robbery in violation of 18 U.S.C. § 371 (Count I), one count of bank robbery in violation of 18 U.S.C. § 2113(a) (Count II), and one count of using a firearm during and in relation to a bank robbery in violation of 18 U.S.C. § 924(c) (Count III). On November 25, 2008, Rickette pleaded guilty to Counts II and III of the indictment pursuant to a written plea agreement. The written plea agreement contained the following waiver:

[T]he defendant also waives her right to challenge her conviction and sentence, and the manner in which the sentence was determined, and (in any case in which the term of imprisonment and fine are within the maximums provided by statute) her attorney's alleged failure or refusal to file a notice of appeal, in any collateral attack or future challenge, including but not limited to a motion brought under Title 28, United States Code, Section 2255. The waiver in this paragraph does not apply to a claim of involuntariness, or ineffective assistance of counsel, which relates directly to this waiver or its negotiation.

(R. 4, Ex. A, 11/25/08 Plea Agree., at 18, ¶ 23(b).) Also pursuant to the plea agreement, the government agreed to move the Court to depart from the applicable guideline range and statutory minimum sentence if Rickette continued to provide full and truthful cooperation. See U.S.S.G. § 5K1.1

On June 8, 2009, Judge David Coar sentenced Rickette to 106 months' imprisonment. At sentencing, the government moved for a reduction in Rickette's sentence pursuant to United States Sentencing Guideline § 5K1.1, which Judge Coar granted. Rickette did not file a direct appeal. Instead, on November 24, 2010, Rickette filed the present Section 2255 motion. The present Section 2255 motion was then assigned to the Court based on Judge Coar's retirement from the bench. Construing Rickette's pro se Section 2255 motion liberally, McGee v. Bartow, 593 F.3d 556, 566-67 (7th Cir. 2010), she challenges: (1) the sufficiency of the evidence and the validity of her plea concerning the Section 924(c) gun charge; (2) the voluntariness of her guilty plea as to the gun charge; and (3) her counsel's effectiveness of counsel under the Sixth Amendment to the United States Constitution.

ANALYSIS

I. Timeliness of Section 2255 Motion

In response to Rickette's Section 2255 motion, Respondent maintains that the instant motion is untimely under the one-year statute of limitations. See 28 U.S.C. § 2255(f)(1).

Specifically, a federal prisoner has one year from the date on which her judgment became final to file a Section 2255 motion. See Clay v. United States, 537 U.S. 522, 524-25, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003); Latham v. United States, 527 F.3d 651, 651 (7th Cir. 2008). A judgment is "final" for purposes of Section 2255(f)(1) when the Supreme Court affirms the federal appellate court, denies certiorari, or the time to file a writ of certiorari lapses. See Clay, 537 U.S. at 527 ("Finality attaches when this 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"); see also Robinson v. United States, 416 F.3d 645, 646 (7th Cir. 2005).

Rickette did not file a notice of appeal, and thus she did not have the right to file a writ of certiorari because she was never "in" the Court of Appeals. See Latham, 527 F.3d at 652-53; 28 U.S.C. § 1254. Therefore, Rickette's one-year limitations period began to run fourteen days after the Court entered judgment, namely, the time in which she was required to file her notice of appeal pursuant to Federal Rule of Appellate Procedure 4(b). See United States v. Neff, 598 F.3d 320, 322 (7th Cir. 2010) (2009 amendment changed time to file notice of appeal for criminal cases to within 10 to 14 days of entry of judgment). Because Judge Coar entered judgment on July 13, 2009, Rickette's judgment became final on July 27, 2009. Rickette therefore had until July 28, 2010 to file the present Section 2255 motion. The present Section 2255 motion was postmarked November 15, 2010, and thus is untimely. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (motion considered "filed" on date prisoner deposits motion in prison mail system).

The one-year limitations period is subject to equitable tolling, which courts grant only if extraordinary circumstances beyond the petitioner's control prevented the timely filing of the Section 2555 motion. See Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004) ("Equitable tolling of the statute of limitations is such exceptional relief that 'we have yet to identify a circumstance that justifies equitable tolling in the collateral relief context.'") (citation omitted); United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) ("equitable tolling is granted sparingly"). A petitioner seeking equitable tolling "bears the burden of establishing two elements: (1) ...


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