The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner Sean Savelsberg ("Savelsberg") pled guilty and was sentenced for receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). Savelsberg filed a Motion to Vacate, Set Aside or Correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Savelsberg's § 2255 Motion.
The following factual background is based on the records in the
underlying criminal proceedings including his guilty plea.*fn1
On May 26, 2006, Savelsberg received an image of child
pornography, namely a video entitled "(Pthc) Vicky -- The 107 Minutes
Collection.mpeg." (R. 43 at 2.) This video had been transported to him
via computer through interstate commerce. (Id.) Savelsberg used his
computer to download the video from Limewire and he watched the entire
video. (Id. at 2-3.) The video depicted minor females engaging in
sexual acts with adult males. (Id. at 3.)
On June 4, 2007, Savelsberg pled guilty to Count II of the Indictment, receiving child pornography that had been transported through interstate commerce. (R. 43.) The Court sentenced him to 97 months' imprisonment on August 30, 2007. (R. 48.) Savelsberg appealed his sentence to the Seventh Circuit, which dismissed the appeal as untimely on March 9, 2010. (R. 63.) Savelsberg filed his § 2255 Motion with this Court on March 2, 2011. (R. 1, 11 C 1482.) His motion sets forth one theory for relief: the government failed to follow-up on his offer to provide information about other criminal activity, which prevented him from receiving a reduced sentence under Federal Rule of Criminal Procedure 35 ("Rule 35").
Savelsberg is proceeding pro se, so the Court construes his filings broadly. Kafo v. U.S., 467 F.3d 1063, 1066 (7th Cir. 2006). Section 2255 allows a prisoner convicted of a federal crime to move the district court that imposed the sentence to vacate, set aside, or correct the sentence, but this relief is only available in cases where there have been jurisdictional or constitutional errors that have caused a "complete miscarriage of justice." Harris v. U.S., 366 F.3d 593, 594 (7th Cir. 2004). It is an "extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. U.S., 476 F.3d 518, 521 (7th Cir. 2007).
The government first contends that Savelsberg filed his motion more than a year after his conviction became final, which renders it untimely under 28 U.S.C. § 2255(f). The Antiterrorism and Effective Death Penalty Act of 1996 requires a petitioner to file a § 2255 motion within one year of the date when the "judgment of conviction becomes final." Robinson v. U.S., 416 F.3d 645, 647 (7th Cir. 2005); see 28 U.S.C. § 2255(f)(1)-(4) (the latest of four dates begins the running of the one-year limitations period, but only (1), the date of final judgment, is relevant to this case).
Here, the Court sentenced Savelsberg and entered the judgment of conviction on August 30, 2007. Under Federal Rule of Appellate Procedure 4(b), Savelsberg had to file a notice of appeal within 14 days, or by September 13, 2007. He waited more than two years after this deadline-November 9, 2009-to file his notice of appeal, which the Seventh Circuit dismissed as untimely on March 3, 2010. Savelsberg let the deadline to appeal expire, so his conviction became final on September 13, 2007. By filing his § 2255 Motion on March 2, 2011, he far exceeded the one-year limitations period.
Savelsberg filed a notice of appeal seeking direct review of his conviction more than two years after entry of judgment and the Seventh Circuit dismissed it as untimely.*fn2 When a defendant files an untimely appeal, his or her conviction becomes final for the purpose of computing the one-year limitation period when the time to file the notice of appeal expired. See, e.g., id. at 388; Kapral v. U.S., 166 F.3d 565, 577 (3d Cir. 1999) ("If a defendant does not pursue a timely direct appeal to the court of appeals, his or her conviction and sentence become final, and the statute of limitation begins to run, on the date on which the time for filing such an appeal expired.") (emphasis added); Aboulissan v. U.S., No. 03-CV-6214, 2008 WL 413781, at *2 n.2 (E.D. N.Y. Feb. 13, 2008) (when defendant filed late notice of appeal his judgment of conviction became final the day after the time to appeal expired). As such, Savelsberg's judgment of conviction became final in September 2007, and he filed his § 2255 Motion in March 2011, far beyond the one-year limitations period.
Only the doctrine of equitable tolling can save Savelsberg's claim for relief. Nolan v. U.S., 358 F.3d 480, 483 (7th Cir. 2004) (§ 2255 limitations period is not jurisdictional but rather a procedural rule subject to equitable tolling). If Savelsberg can establish: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance outside of his control stood in his way and prevented timely filing without any fault of his own, he is entitled to equitable tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Robinson v. U.S., 416 F.3d 645, 651 n.1 (7th Cir. 2005) (courts grant equitable tolling "sparingly, where extraordinary circumstances beyond the litigant's control prevented timely filing"); Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir.2004). Here, Savelsberg cannot establish either element. He exceeded the limitations period by over two years, not just a few days, which by itself ...