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Saunders v. United States

United States District Court, Seventh Circuit

January 17, 2014

DEVIN SAUNDERS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge.

Before the Court is pro se Petitioner Devin Saunders' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court dismisses Saunders' Section 2255 motion as untimely. See 28 U.S.C. § 2255(f)(1).[1] Also, the Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

FACTUAL BACKGROUND

On March 22, 2011, a federal grand jury returned an indictment against Saunders charging him with conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 (Count One); attempted possession with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) (Count Two); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three); and possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On March 29, 2011, Saunders entered a plea of not guilty to all counts of the indictment.

On March 8, 2012, a superseding information charged Saunders with conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a) (Count One); and possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two). Also on March 8, 2012, pursuant to a written plea agreement, Saunders pleaded guilty to both counts of the superseding information. As part of Saunders' plea agreement, he agreed to waive his right to appeal his conviction and sentence and his right to a collateral attack in a motion brought pursuant to 28 U.S.C. § 2255.

On May 23, 2012, the Court sentenced Saunders to 93 months in prison to be followed by three years of supervised release. The Court entered judgment on May 29, 2012. Saunders did not file an appeal. On November 18, 2013, Saunders filed the present Section 2255 motion.

ANALYSIS

I. Statute of Limitations - 28 U.S.C. § 2255(f)(1)

Respondent maintains that Saunders motion is untimely under the one-year statute of limitations. See 28 U.S.C. § 2255(f)(1). In general, a federal prisoner has one year from the date on which his judgment became final to file a Section 2255 motion. See Clay v. United States, 537 U.S. 522, 524-25, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003); Latham v. United States, 527 F.3d 651, 651 (7th Cir. 2008); 28 U.S.C. § 2255(f)(1). A judgment is "final" for purposes of Section 2255(f)(1) when the Supreme Court affirms the federal appellate court, denies certiorari, or the time to file a writ of certiorari lapses. See Clay, 537 U.S. at 527 ("Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires").

Saunders did not file a notice of appeal, and thus he did not have the right to file a writ of certiorari because he was never "in" the Court of Appeals. See Latham, 527 F.3d at 652-53; 28 U.S.C. § 1254. Therefore, Saunders' one-year limitations period began to run fourteen days after the Court entered judgment, namely, the time in which he was required to file his notice of appeal pursuant to Federal Rule of Appellate Procedure 4(b). See Clark v. United States, 703 F.3d 1098, 1100 (7th Cir. 2013); United States v. Neff, 598 F.3d 320, 322 (7th Cir. 2010). Because the Court entered judgment on March 29, 2012, Saunders' judgment became final fourteen days later on April 12, 2012. As such, Saunders had until one year later to file the present Section 2255 motion, namely, April 13, 2013. See Fed.R.Civ.P. 6(a)(1)(A) ("exclude the day of the event that triggers the period"). Saunders filed the present Section 2255 motion on November 18, 2013, and thus it is untimely.[2]

Because Section 2255's statute of limitations is not a jurisdictional limitation, courts can toll it. See Estremera v. United States, 724 F.3d 773, 775 (7th Cir. 2013); Clark, 703 F.3d at 1101. First, the one-year limitations period is subject to equitable tolling, which courts grant only if extraordinary circumstances beyond the petitioner's control prevented him from the timely filing of his Section 2555 motion. See Holland v. Florida, 560 U.S. 631, ___, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010). Also, Section 2255(f) provides for statutory tolling as follows:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of -
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented ...

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