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Devon Stewarts v. United States of America

May 10, 2011

DEVON STEWARTS,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



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

ORDER

Before the Court is movant Devon Stewarts' motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Doc. 1). For the reasons that follow, the motion is dismissed as untimely.

I. Background

On January 15, 2009, movant plead guilty to the charges of conspiracy to distribute cocaine and marijuana (count 1) and distribution of cocaine (count 2) (Doc. 48 - 08-30129). On May 1, 2009, movant was sentenced to 121 months' imprisonment on each count to run concurrently (Docs. 57 & 60 - 08-30129). Following judgment, on September 9, 2009, movant filed a motion to withdraw counsel of record and proceed pro se (Doc. 62 - 08-30129), a motion to proceed in forma pauperis (Doc. 63 - 08-30129), and a motion to receive sentencing memoranda, plea agreement, and sentencing transcripts (Doc. 64 - 08-30129) so that movant "will have the needed documents to challenge his sentence by way of 21 U.S.C. § 2255." On September 28, 2009, the Court filed an order (Doc. 65 - 08-30129), denying all three motions filed by movant on September 9, 2009, for lack of jurisdiction. In that order, the Court noted that the only procedural avenue that movant could bring his motion under was a § 2255 collateral attack, but that it did not appear that was what the movant was currently seeking. The order stated that a collateral attack under § 2255 has a one-year statute of limitations, and that although movant indicated that he would be filing a § 2255 motion, he had yet to do so and must first do so to obtain transcripts under 28 U.S.C. § 753(f).

Following this, on April 30, 2010, three days before the deadline to file his § 2255 motion based upon the date on which his judgment of conviction became final, movant filed a letter dated April 29, 2010, which the Court construed as a motion for extension of time to file a § 2255 motion to vacate, set aside, or correct sentence (Doc. 66 - 08-30129). On May 24, 2010, the Court entered an order (Doc. 67), denying the motion for extension of time (Doc. 67), finding that the statute did not provide for extensions of time. The Court also noted that the Seventh Circuit has contemplated an equitable tolling provision which would potentially allow a court to accept a late filed § 2255 motion, but movant had neither filed a motion nor stated his reasons for his inability to file. Thus, the Court concluded that it was unable to determine whether equitable tolling was available. Accordingly, the Court instructed the movant that if movant actually filed a § 2255 motion, it may consider any argument he presented that the motion should not be considered untimely.

On September 10, 2010, movant finally filed a § 2255 motion to vacate, set aside, or correct sentence (Doc. 1), alleging, among other things, that his trial counsel failed to file a timely notice of appeal and failed to file a motion for new trial under Federal Rule of Criminal Procedure Rule 33. Attached to the motion were several letters between movant and his trial attorney. Those letters are summarized as follows:

1) A letter dated May 17, 2010, from movant to his trial attorney stating that this was his third inquiry as to the status of his Rule 33 motion, direct appeal, and his attorney's motion to withdraw;

2) A letter dated May 28, 2010, from movant's trial attorney to movant stating that this was the first request he had received from movant regarding the status of his case on appeal, informing movant that no notice of appeal or Rule 33 motion was filed in his case, that he never received any request to file these "motions," and that movant had one year to file a § 2255 motion;

3) A letter dated June 2, 2010, from movant to his trial attorney inquiring as to whether he needed to ask the court to extend the time for filing a notice of appeal, acknowledging receipt of the order from the court informing him that the court was without jurisdiction to grant his request to extend the time to a file a § 2255 motion, and inquiring as to whether he must now seek approval from the Seventh Circuit to file a § 2255 motion;

4) A letter dated June 2, 2010, from movant's trial attorney to movant stating that movant never requested him to file a notice of appeal nor a Rule 33 motion, informing movant that he may request the Seventh Circuit or the district court to extend the time for filing a notice of appeal, but that many of those issues were waived in his plea agreement, and that, as he saw it, movant's only remedy was a § 2255 motion which had tight time lines;

5) A letter dated July 21, 2010, from movant to his trial attorney requesting that his trial attorney's office furnish him with copies of the state court documents that his attorney possessed; and

6) A letter dated July 29, 2010, from movant's trial attorney to movant requesting that movant pay him to recover the documents movant requested and his attorney fees which were outstanding.

After examining the motion, the Court ordered the government to respond by October 18, 2010 (Doc. 2). The government missed that deadline, but on November 3, 2010, the government moved for an extension of time to file a response (Doc. 3), and the Court granted the government until January 18, 2011, to file a response. In the meantime, movant filed a "request for status of section 2255 motion" and a motion for evidentiary hearing (Doc. 5), which the Court denied as premature (Doc. 6). On January 18, 2011, the government filed its response to movant's motion (Doc. 7), whereby it alleged, among other things, that movant's motion was ...


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