The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
Wednesday, 14 September, 2011 04:13:46 PM
Clerk, U.S. District Court, ILCD
Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed by Petitioner Nickolas Trevon Bryant on December 28, 2010 (Doc. 1), and the Motion to Dismiss filed by Respondent on May 17, 2011 (Doc. 4). Petitioner also captions his filing "Motion to Grant New Trial Due to New Extrinsic Evidence" (Doc. 1); the Court interprets this to be a Motion for a New Trial Pursuant to Federal Rule of Criminal Procedure 33. For the following reasons, both of Petitioner's Motions are DENIED and Respondent's Motion to Dismiss is GRANTED.
On January 29, 2008, the Grand Jury returned an indictment charging Petitioner with Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). Petitioner was represented by attorney George F. Taseff during the criminal proceedings against him. After initially pleading not guilty, Petitioner changed his plea to guilty on April 4, 2008. On July 11, 2008, Petitioner was sentenced to 86 months of incarceration and 3 years of supervised release, and was ordered to pay a two hundred dollar special assessment. At sentencing, Petitioner was advised of his right to appeal. Judgment was accordingly entered on July 17, 2008. Petitioner never filed a direct appeal. On December 29, 2010, Petitioner filed the instant Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, and Motion for a New Trial Pursuant to Federal Rule of Criminal Procedure 33. Respondent filed a Motion to Dismiss, arguing that Petitioner's § 2255 Motion is untimely. Petitioner failed to timely respond to the Motion to Dismiss, and no response has been filed as of the date of this Opinion and Order.
A petitioner must file a § 2255 motion within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1).*fn1 At the time of Petitioner's conviction, judgment became final ten days after judgment was entered.
FED. R. APP. P. 4(b)(1)(A) (2009) (effective until Dec. 1, 2009). Because Petitioner's § 2255 Motion was not filed within the one-year limitations period, the Motion is untimely and must be dismissed.
In its Motion to Dismiss, Respondent asserts that Petitioner's judgment became final on July 21, 2008. (Doc. 4 at 3). This is incorrect for two reasons. First, pursuant to Federal Rule of Appellate Procedure 4(b)(6), "[a] judgment or order is entered . . . when it is entered on the criminal docket." FED. R. APP. P. 4(b)(6). In Petitioner's criminal case, judgment was entered on the docket on July 17, 2008, not, as Respondent claims, on July 11, 2008. Rather, the July 11 docket entry represents the date on which proceedings were held before the Court, during which Petitioner was sentenced. (7/11/2008 Minute Entry). Because judgment in Petitioner's case became final ten days after judgment was entered, the ten-day clock started to run on July 17, 2008.
Second, although Respondent is correct in applying the ten-day limitations period, it counts the days between the beginning and end of the period incorrectly. Prior to December 1, 2009, judgment in a case became final ten days after judgment was entered. FED. R. APP. P. 4(b)(1)(A) (2009) (effective until Dec. 1, 2009). However, this calculation did not includeSaturdays, Sundays, or legal holidays. FED. R. APP. P. 26(a)(2) (2009) (effective until Dec. 1, 2009). Respondent asserts that "[s]ince the Judgment was filed on July 11, 2008 . . . Bryant's judgment became final 10 days later, on July 21, 2008 . . . ." (Doc. 4 at 3). Even if the ten-day period started to run on July 11 (which it did not), judgment would not have become final until July 25, because in 2008, July 12-13 and 19-20 were weekend days not to be included in the ten-day limitations period calculation.
Judgment in Petitioner's criminal case became final ten days after July 17, 2008. Using the then-appropriate method for calculating this period (i.e. excluding Saturdays, Sundays, and legal holidays), it becomes clear that Petitioner's judgment became final on July 31, 2008.
But the correction of Respondent's calculating errors still does not save Petitioner's § 2255 Motion. The last day by which Petitioner could have filed his § 2255 Motion was July 31, 2009-one year after the date on which judgment became final. 28 U.S.C. § 2255(f)(1). At no point has Petitioner asserted that the limitations period should be tolled. See Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004). Because Petitioner filed his § 2255 Motion on December 28, ...