United States District Court, S.D. Illinois
HERNDON, District Judge
matter is before the Court on petitioner Steve Nides'
motion to vacate, set aside or correct his sentence pursuant
to 28 U.S.C. § 2255 (Doc. 1). Under Rule 4(b) of the
RULES GOVERNING § 2255 PROCEEDINGS IN THE UNITED STATES
DISTRICT COURTS, a judge receiving a § 2255 motion must
conduct a preliminary review and, “[i]f it plainly
appears from the motion, any attached exhibits, and the
record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party.” A
preliminary review of the petition shows that it must be
pleaded guilty, with the benefit of a written plea agreement,
to one count of conspiracy to distribute marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and 846
(3:07-cr-30136 Doc. 216 & 217). On June 18, 2009,
petitioner was sentenced to 188 months imprisonment, 5 years
supervised release, a $100 assessment, and a fine of $875
(3:07-cr-30136 Doc. 290). Judgment was entered that same day.
Id. Petitioner did not file a direct appeal.
10, 2010, petitioner filed a Motion to Vacate, Set Aside or
Correct Sentence pursuant to 28 U.S.C. § 2255
(3:10-cv-348 Doc. 1). Petitioner asserted that he was
provided ineffective assistance of counsel because his
counsel did not file a notice of appeal as petitioner
allegedly instructed. The government was directed to respond
to petitioner's motion and the petitioner replied (Doc. 4
& Doc. 5). An evidentiary hearing was held on January 13,
2011 (Doc. 8). Thereafter, the Court appointed counsel to
represent petitioner (Doc. 12). A second evidentiary hearing
was held on July 7, 2011 (Doc. 15). At the evidentiary
hearing, the petitioner moved to voluntarily dismiss his case
(Doc. 15). The Court granted the petitioner leave to withdraw
his petition, without prejudice, and closed the case (Doc.
more than seven years after judgment was entered in the
subject criminal action and more than six years after the
petitioner initially asserted an ineffective assistance of
counsel claim for failure to file appeal, the petitioner
brings a second 2255 petition. The government has not been
ordered to file a response to petitioner's § 2255
motion. Pursuant to 28 U.S.C. § 2255 and Rule 4 of the
RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED
STATES DISTRICT COURTS, the Court has reviewed
petitioner's filing to determine whether he might be
entitled to relief. For procedural reasons, the Court
determines that he is not.
U.S.C. § 2255(f) imposes a one year period of
limitations upon the filing of a motion attacking a sentence
imposed under federal law. This period generally begins to
run on the date on which the judgment of conviction becomes
final. 28 U.S.C. § 2255(f)(1). Alternatively, where a
petitioner seeking relief under § 2255 alleges
ineffective assistance of counsel for failure to file a
notice of appeal, before calculating the time period under
§ 2255(f)(4) the court must determine whether a duly
diligent person in petitioner's circumstances would have
discovered that no appeal had been filed. Anjulo-Lopez v.
United States, 541 F.3d 814, 818 (8th Cir. 2008). Here,
under either standard, the petition is clearly time barred.
fact that petitioner previously filed a timely § 2255
petition asserting ineffective assistance of counsel with
regard to failure to file an appeal does not alter this
result. The petitioner, with the aid of counsel, elected to
voluntarily dismiss that petition. The Court's docket
indicates the petitioner wished to file a new 2255 petition
asserting additional claims. The Court granted leave to
withdraw the petition, without prejudice, and closed the
case. Unfortunately, this does not resolve the timeliness
issues associated with the current petition. Further, the
Court was not required to warn the petitioner regarding the
potential consequences of withdrawing his petition. See
Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 2446, 159
L.Ed.2d 338 (2004) (judge is constrained by a duty of
impartiality and cannot be a litigant's advocate).
See also Arrieta v. Battaglia, 461 F.3d 861, 867
(7th Cir. 2006) (District court's failure to warn
petitioner that voluntary dismissal of 2254 petition would
eliminate his ability to obtain federal habeas review
altogether was not basis for equitable tolling of one-year
statute of limitations). As such, the Court cannot consider
petitioner's arguments on the merits and petitioner's
§ 2255 petition is denied as untimely.
Rule 11(a) of the RULES GOVERNING SECTION 2255 PROCEEDINGS,
the “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” A habeas petitioner does not have an
absolute right to appeal a district court's denial of his
habeas petition; he may appeal only those issues for which a
certificate of appealability have been granted. See
Sandoval v. United States, 574 F.3d 847, 852 (7th Cir.
2009). A habeas petitioner is entitled to a certificate of
appealability only if he can make a substantial showing of
the denial of a constitutional right. Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); 28 U.S.C. §
2253(c)(2). Under this standard, a petitioner must
demonstrate that, “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to
proceed further.' ” Id. (quoting Slack
v. McDaniel, 529 U.S. 473, 484 (2000)).
district court denies a habeas petition on procedural
grounds, the court should issue a certificate of
appealability only if (1) jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right, and (2) jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling. See Slack, 529
U.S. at 485.
jurists could not debate that the petition should have been
resolved in a different manner. Reasonable jurists would not
debate that the petition does not state a valid claim of the
denial of a constitutional right, nor would they debate that
the petition is untimely. Therefore, the Court ...