HOWE v. U.S

NORAH KING, Magistrate Judge

Petitioner has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on its own motion to consider the sufficiency of the petition under Rule 4(b) of the Rules Governing Section 2255 Proceedings. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED as untimely.

On June 30, 2000, an information was filed charging petitioner with conspiracy to defraud Bank One, in violation of 18 U.S.C. § 371. Doc. No. 3. While represented by counsel and pursuant to a plea agreement signed on the same date, on July 14, 2000, petitioner waived his right to indictment and pleaded guilty. Doc. Nos. 4-7. On October 6, 2000, the government's motion for downward departure from the sentencing guidelines pursuant to U.S.S.G. § 5K1.1 was granted, and petitioner was sentenced to three years probation. Doc. No. 13. Petitioner never filed an appeal of his conviction and sentence.

On April 22, 2005, petitioner filed the instant pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to advise him of his right not to accept the guilty plea, failed to advise him of his right to trial by jury, his right to confront his accusers and that he could not be compelled to testify. Petitioner further asserts that his attorney failed to explain the nature and elements of the offense charged, and failed to discuss any possible defense with petitioner prior to petitioner's acceptance of the guilty plea. In addition, petitioner asserts that his guilty plea was not knowing, intelligent, or voluntary.

28 U.S.C. § 2255 provides a one-year time limitation on the filing of federal habeas corpus petitions:

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 from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

Id. Plainly, that time period has long since expired. Petitioner's conviction became final in 2000, when the time period expired to file an appeal. See Sanchez-Castellano v. United States, 358 F.3d 424, 426-27 (6^th Cir. 2004).

The instant action was not filed until 2005. Further, petitioner has failed to allege any extraordinary circumstances that would justify equitable tolling of the statute of limitations for this time period. See Jurado v. Burt, 337 F.3d 638, 643 (6^th Cir. 2003).

In view of the foregoing, the Magistrate Judge RECOMMENDS that this action be DISMISSED as untimely.

If any party objects to this Report and Recommendation, that party may, within ten (10) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).