UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
)
~ ) Criminal Case No. 04-93 (RJL)
) ,
MATTHEW WEST, )
)
FILED
DefendantlPetitioner. ) JUN 0 8 2009
MEMORArM ORDER
..- NANCY MAYER WHITTINGTON. CLERK
U.S. D1STi1ICT COURT
(June , 2009)
Petitioner Matthew West, a federal Bureau of Prisons inmate, has moved
under 28 U.S.C § 2255 to vacate, set aside, or correct his sentence.] ("Def.'s
Mot." [Dkt. #41].) In response, the government has moved to dismiss West's
motion on the basis that it is time-barred. ([Dkt. #45].) For the following reasons,
the Court will GRANT the government's motion and DENY West's motion.
BACKGROUND
West was convicted on October 1, 2004 of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(l). On March 24, 2005, this
Court sentenced West to a 216-month term of imprisonment. (Judgment at 2 [Dkt.
28 U.S.C. § 2255(a) provides:
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may move the court which
imposed the sentence to vacate, set aside or correct the sentence.
#29].) The United States Court of Appeals for the District of Columbia affirmed
West's conviction on August 15,2006. United States v. West, 458 F.3d 1, 14
(D.C. Cir. 2006). West subsequently filed the present motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.c. § 2255 on April 14,2008. In his
motion, West contends that he received ineffective assistance of counsel and that,
at the time of his sentencing, he was not an Armed Career Criminal subject to a
fifteen-year mandatory-minimum sentence under to 18 U.S.C. § 924(e). (Def.'s
Mot. at 5.)
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A")
requires that a petitioner file a § 2255 motion within one year from the date on
which the judgment of conviction becomes final, with certain enumerated
exceptions. 2 28 U.S.C. § 2255(f). A conviction becomes final when the U.S.
Supreme Court "affirms a conviction on the merits on direct review or denies a
2
The AEDPA requires that a petitioner file a § 2255 motion within one year of the
later 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.
28 U.S.C. § 2255(t). Petitioner provides no indication that any of exceptions outlined in
subsections (2)-(4) apply in the present case, nor does that Court find any.
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petition for a writ of certiorari, or when the time for filing a certiorari petition
expires." Clay v. United States, 537 U.S. 522, 527 (2003). In this case, petitioner
did not file a petition for a writ of certiorari. 3 Therefore, petitioner's conviction
became final ninety days after the U.S. Court of Appeals' judgment, or November
13,2006, Sup. Ct. R. 13; 28 U.S.C. § 2101(c), and West's window to file his
motion expired one year thereafter, on November 13,2007. West, however, did
not file his motion until April 14, 2008, five months after that critical statutory
deadline. West's § 2255 motion is thus time-barred under the AEDP A.
West argues, however, that his § 2255 claim is preserved by equitable
tolling because he mistakenly first filed his collateral challenge to his sentence in
the U.S. Court of Appeals as a Motion to Recall the Mandate. (Def. 's Mot. at 6.)
While it remains an open question in our Circuit whether a court may apply
equitable tolling to the AEDPA's one-year statute oflimitations, United States v.
Pollard, 416 F.3d 48,56 n.l (D.C. Cir. 2005), if equitable tolling can apply, it
would only apply if "extraordinary circumstances beyond a prisoner's control
make it impossible to file a petition on time," United States v. Cicero, 214 F.3d
199,203 (D.C. Cir. 2000) (quoting Calderon v. United States Dist. Court/or the
Central Dist. o/California, 128 F.3d 1283, 1288 (9th Cir. 1997)) (internal
quotations omitted). Here, West makes no allegations that he made a good faith
effort to file his § 2255 motion but was prevented from doing so in a timely
3
Indeed, West contends that his counsel provided ineffective assistance for failing
to file a petition for a writ of certiorari. (Def.' s Mot. at 5.)
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manner by circumstances or events out of his control. Rather, West merely
provides that he mistakenly failed to file the correct motion in a timely manner. A
petitioner's "ignorance of the law or unfamiliarity with the legal process will not
excuse his untimely filing." See Cicero, 214 F.3d at 203-04 (citing Fisher v.
Johnson, 174 F.3d 710,714-15 (5th Cir. 1999»; see also Fears v. United States,
No. 06-86, 2006 WL 763080, at *4 (D.D.C. Mar. 24, 2006) ("Neither petitioner's
self-acknowledged 'limited intelligence' nor his ignorance of the law ... are
sufficient to justify the extraordinary action of departing from the will of Congress
as clearly expressed in § 2255."). Thus, West's failure to file the correct motion
within the required one-year window cannot be categorized as an "extraordinary
circumstance."
Accordingly, because West has not alleged any circumstances related to his
untimely § 2255 motion so compelling as to warrant equitable tolling, and because
West's motion was filed outside the one-year filing window, it is hereby
ORDERED that the government's motion to dismiss petitioner's motion
under 28 U.S.C § 2255 to vacate, set aside, or correct his sentence is GRANTED;
and it is further
ORDERED that the petitioner's motion under 28 U.S.C § 2255 to vacate,
set aside, or correct his sentence is DENIED.
{4~
SO ORDERED.
RICHA EON
United States District Judge
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