The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
E-FILED Monday, 15 August, 2011 09:28:13 AM Clerk, U.S. District Court, ILCD
Before the Court is the United States of America's Motion to Dismiss Richard Lear's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (RII.3).*fn1 For the following reasons, Respondent's Motion is GRANTED and the Petition is DISMISSED WITH PREJUDICE.
On December 18, 2002, Lear was charged by Superseding Indictment with Conspiracy to Manufacture and Distribute Methamphetamine, in violation of 21 U.S.C. § 846, (Count 1); Endangering Human Life while Transporting Chemicals to Manufacture a Controlled Substance, in violation of 21 U.S.C. § 858 (Count 2); Use of a Short-Barreled Shotgun in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C.. § 924(c)(1)(B)(i) (Count 3); Possession of an Unregistered Firearm, in violation of 26 U.S.C. § 5861(d) (Count 4); and Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 5). (RI.15).
On January 14, 2003, the government filed a Notice of Intent to Rely Upon Prior Felony Drug Conviction for Sentencing Enhancement, citing Lear's prior conviction, which would trigger a mandatory minimum sentence upon conviction of 20 years of imprisonment. (RI.17).
On April 4, 2003 a written plea agreement was filed, wherein Lear agreed to plead guilty to Counts 1 and 3 of the Superseding Indictment.*fn2 (RI.21). The government agreed to dismiss, at sentencing, Counts 2,4 and 5 of the Indictment.
Lear was sentenced on July 11, 2003 to 240 months of imprisonment on Count 1 and 120 months of imprisonment on Count 3, with the terms to run consecutively. He was also sentenced to 10 years of supervised release, and ordered to pay a $2,500 fine and a $200 special assessment. (RI. d/e 7/11/03). The written Judgment was filed on July 21, 2003. (RI.30). No direct appeal was filed.
Almost eight years later, on April 4, 2011, Lear filed a Motion to Vacate, Set Aside or Correct Sentence. (RII.1). He makes four claims in this motion: 1) he was denied effective assistance of counsel during district court proceedings; 2) he is legally innocent of the § 924(c)(1) firearm indictment; 3) the indictment contained duplicitous or multiple counts; and 4) this Court lacked jurisdiction because the indictment was procedurally defective. On June 7, 2011 the government filed a Motion to Dismiss Lear's Petition as untimely under 28 U.S.C. § 2255(f). (RII.3). On August 4, 2011, Petitioner filed his timely Response. (RII.5).
28 U.S.C. § 2255(f) imposes a one year period of limitations upon the filing of a motion attacking a sentence imposed under federal law. Absent (i) an unconstitutional governmental impediment to filing, (ii) a newly recognized or retroactively applicable constitutional right, or (iii) a subsequently discovered factual predicate for the claims for relief, the applicable limitations period begins on the date the challenged judgment becomes final. 28 U.S.C. § 2255(f)(1)-(4). Lear does not claim that (i)-(ii) applies to this case; however Lear does claim that his Petition is timely under (iii). Unfortunately for Lear, he fails to explain why this is so.
Federal Rule of Civil Procedure 8(a)(2) as interpreted by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) requires the pleading of sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. See Iqbal at 1950. The only factual matter pled by Petitioner is the conclusory statement that "This Motion . . . is timely filed pursuant to 28 U.S.C. § 2255(f)(4)." (RII.1 at 3). Unfortunately, this conclusory allegation does not suffice. As stated in Iqbal, the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." See Iqbal at 1950-1951. Consequently, in the absence of any reasonable basis to find that the motion was timely filed due to subsequently discovered facts, the Court concludes that Lear's Petition does not qualify as timely under (iii), supra.
In light of the foregoing, the Court concludes that the applicable period of limitations in this case is one year from the date the judgment became final. This Court sentenced Lear on July 11, 2003 and entered the written judgment on Lear's conviction on July 21, 2003. Since Lear did not appeal his conviction, his judgment became final ten business days thereafter, when he could no longer seek appellate review. FED. R. APP. PROC. 4(b)(1)(A).*fn3 Lear's Petition was not filed until April 1, 2011, almost seven years after his period of limitations expired. (RII.1). Consequently, Lear's Petition is time barred unless he is able to establish an entitlement to equitable tolling. Robinson v. U.S., 416 F.3d 645 (7th Cir. 2005).
Equitable tolling excuses an untimely filing when "[e]xtraordinary circumstances far beyond the litigant's control . . . prevented timely filing." Poe v. United States, 468 F.3d 473, 477 (7th Cir. 2006) quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). Before equitable tolling can apply, Lear must show that first, extraordinary circumstances outside of his control and through no fault of his own prevented him from timely filing his Petition and, second, that he has diligently pursued his ...