SUE E. MYERSCOUGH, District Judge.
This cause is before the Court on Respondent United States of America's Motion to Dismiss (d/e 5) Petitioner Kenneth Crissey's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Petition) (d/e 1). Because the Petition is untimely and not subject to equitable tolling, the Motion to Dismiss is GRANTED.
In February 2009, the grand jury returned an Indictment charging Petitioner with two counts of distribution of child pornography, one count of possession of child pornography, and one count of forfeiture. See United States v. Kenneth G. Crissey, Case No. 09-30020, Indictment, d/e 2. In April 2009, Petitioner pleaded guilty to all of the counts in the Indictment pursuant to a Plea Agreement. See Case No. 09-30020, April 15, 2009 Text Order and Plea Agreement and Stipulation of Facts, d/e 10. Petitioner was represented by Assistant Federal Defender Robert Joseph Schershligt.
In the Plea Agreement, Petitioner acknowledged that, upon conviction, he would be classified as a "sexual predator" pursuant to state lawand would be required to register as a sex offender for life. Case No. 09-30020, Plea Agreement, d/e 10, ¶ 20. Petitioner waived his right to direct appeal and collateral attack. Id . ¶¶ 34, 35.
On September 21, 2009, United States District Judge Jeanne Scott sentenced Petitioner to 204 months' imprisonment on each of Counts 1 and 2, and 120 months on Count 3, all to run concurrently, and lifetime supervised release. In addition, all of the property listed in Count 4 of the Indictment was forfeited. Petitioner did not appeal.
On July 9, 2012, Petitioner filed a "Motion for Leave to File Out-of-Time Appeal" (Motion). See Case No. 09-30020, d/e 37. In the Motion, Petitioner asserted that, after sentencing, he told his trial counsel to file an appeal challenging the constitutionality of lifetime supervised release and the sexual predator classification. On December 10, 2010, Petitioner contacted counsel regarding the status of his appeal.
On January 14, 2011, Assistant Federal Defender Thomas C. Wilmouth responded to Petitioner's correspondence. See Case No. 09-30020, d/e 37. In that letter, Attorney Wilmouth explained why Petitioner had no grounds for appeal. Wilmouth also noted that Petitioner waived his right to appeal any portion of his case in the Plea Agreement. Attorney Wilmouth advised Petitioner that the only appeal right he had left was to file a petition under 28 U.S.C. § 2255 alleging that counsel was ineffective for allowing Petitioner to enter into a plea agreement that waived his habeas corpus rights. Attorney Wilmouth also advised Petitioner that his time to file a habeas petition may have passed.
On July 23, 2012, this Court denied Petitioner's Motion for Leave to File Out-of-Time Appeal Pursuant to Federal Rules of Appellate Procedure. Case No. 09-30020, Opinion, d/e 39. Petitioner did not appeal this ruling.
On February 7, 2013, Petitioner filed the Petition at issue herein (d/e 1). In his Petition, Petitioner raises two grounds for relief. First, Petitioner asserts that his trial counsel was ineffective for failing to timely appeal and for failing to object to the sexual predator classification. Second, Petitioner asserts that his due process rights were violated because he was not provided an adequate hearing to defend against the sexual predator classification and was not told that he would be exposed to potential civil commitment proceedings.
Petitioner filed an Affirmation in support of his § 2255 Petition. See d/e 3. In that Affirmation, Petitioner asserts that, prior to his guilty plea, counsel told Petitioner that he was being classified as a sexual predator. Affirmation, d/e 3, ¶ 9. Petitioner asked counsel to object to the sexual predator classification because it was excessive. Id . ¶ 10. Trial counsel advised Petitioner that the classification would not affect Petitioner's sentence and that an objection to the classification would only upset the terms of the Plea Agreement. Id . ¶ 11.
Petitioner also asserts that he was never advised of the collateral consequence of civil commitment proceedings due to his sexual predator classification. Id . ¶ 12. Petitioner claims that his counsel's failure to object to the sexual predator classification resulted in an enhanced sentence and subjects Petitioner to the future collateral consequence of civil commitment proceedings. Id . ¶ 13. Petitioner further states that had he been advised that classification as a sexual predator would subject him to possible civil commitment proceedings, he would not have pleaded guilty. Id . ¶¶ 14, 18. Petitioner asserts that the sexual predator classification imposed on him was in violation of his due process rights because he does not meet the requirements of the classification. Id . ¶ 17.
The United States argues the Petition should be dismissed because it is untimely and Petitioner waived his right to collaterally attack his conviction and sentence. Because the Petition is untimely, the Motion to Dismiss is granted and the Court does not address Petitioner's ...