The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Damian Y. James' motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Government responded to the motion (Doc. 8).
James was convicted by a jury on September 26, 2007, of one count of conspiring to distribute a mixture and substance containing crack cocaine, one count of possessing a firearm as a felon and two counts of distributing a mixture and substance containing crack cocaine. On March 14, 2008, the Court sentenced James to serve 295 months on the conspiracy count, 120 months on the firearm possession count and 240 months on each distribution count, all to run concurrently.
James appealed his conviction to the United States Court of Appeals for the Seventh Circuit, which affirmed his conviction on June 2, 2009. See United States v. Harris, 567 F.3d 846 (7th Cir. 2009). He filed a petition for a writ of certiorari to the United States Supreme Court, which denied the petition on December 14, 2009. See James v. United States, 130 S. Ct. 1032 (2009).
Between September 27, 2010, and December 27, 2010, James filed three petitions for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Eastern District of Kentucky, where he was incarcerated. In each, he argued that a motion under 28 U.S.C. § 2255, which must be filed in the district of a defendant's conviction, was an inadequate remedy for his complaints because the issues he raised had already been decided against him in this district and in the Seventh Circuit. The court did not construe any of the § 2241 petitions as motions pursuant to § 2255, and denied or dismissed the § 2241 petitions for various reasons. See James v. Bureau of Prisons, No. 6:10-cv-00267-KSF (E.D. Ky. Dec. 1, 2010); James v. Bureau of Prisons, No. 6:10-cv-00337-KSF (E.D. Ky. Feb. 4, 2011); James v. Bureau of Prisons, No. 6:10-cv-00352-GFVT (E.D. Ky. Jan. 24, 2011).
James signed and mailed this bona fide § 2255 motion on March 3, 2011. In the motion, he argues that his counsel was constitutionally ineffective in violation of his Sixth Amendment right to effective assistance of counsel because he failed (1) to file a motion for judgment of acquittal after the Government closed its case on the basis that it did not prove the amount of crack cocaine involved in the conspiracy, (2) to object at sentencing that the controlled substance involved in the offense was crack cocaine, and (3) to object to the Court's failure to instruct the jury on the definition of crack cocaine.
The Government argues that James' motion is untimely because it was filed beyond the one-year statute of limitations set forth in § 2255(f). Alternatively, the Government argues that counsel provided constitutionally adequate assistance.
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Relief under § 2255 is available only if an error is "constitutional, jurisdictional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255.
The Court first addresses the statute of limitations issue. Prisoners used to be able to file motions under § 2255 at any time during their sentences. However, on April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, tit. I, § 106 (codified at 28 U.S.C. §§ 2244(a) & (b) & 2255), which added a one-year limitations period for a motion attacking a sentence. Most of the time, and in this case this general rule holds true, the one-year limitations period runs from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1); see Clay v. United States, 537 U.S. 522, 524 (2003). Where the Supreme Court denies a petition for a writ of certiorari, the judgment of conviction becomes final for § 2255 purposes on the date the Supreme Court denies the petition. See Clay, 537 U.S. at 527.
It is clear that James' conviction became final on December 14, 2009, when the Supreme Court denied his petition, and that James filed his § 2255 motion on March 3, 2011 (applying the "mailbox rule" of Houston v. Lack, 487 U.S. 266, 276 (1988)), more than one year later. Thus, it is late.
James asks the Court to toll the running of the limitations period such that his § 2255 motion is deemed timely. He claims that he mistakenly filed a petition under § 2241, not knowing that § 2255(e) prohibits a court from entertaining a habeas petition unless the applicant has first applied for relief under § 2255 from the sentencing court or shows that § 2255 is inadequate or ineffective to test the legality of ...