United States District Court, E.D. Tennessee, Chattanooga Division
HARRY S. MATTICE, Jr., District Judge.
Leslie Dewayne Allen ("Allen"), a federal inmate, by and through counsel, has filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255 (Criminal Court Doc. 128). After conviction by a jury of conspiracy to distribute 5 grams or more of cocaine base ("crack") in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B) (Count One), possession and distribution of 5 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count Two), use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 3559(c) (Count Three), and felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count Four), and after admitting the truth of several prior conviction enhancement allegations during his judgment proceeding, Allen was sentenced to concurrent terms of 360 months imprisonment on Counts One, Two, and Four (at the bottom of the applicable Guidelines range), followed by life imprisonment on Count Three, pursuant to 18 U.S.C. § 3559(c).
Allen pursued a direct appeal and, by opinion filed August 13, 2010, the United States Court of Appeal for the Sixth Circuit affirmed the judgment (Criminal Doc. 122). The Supreme Court of the United States denied Allen's petition for a writ of certiorari on December 13, 2010 (Criminal Doc. 126), and counsel filed this § 2255 motion on Allen's behalf on December 15, 2011 (Criminal Court Doc. 128). The Court directed the government to file an answer in this matter (Criminal Court Doc. 132). In its response, the government notes that Allen's § 2255 motion was filed outside the one-year statute of limitations and - in a footnote - argued the motion should be time-barred. In addition, the government has responded to each of Allen's claims on the merits.
For the reasons explained below, the Court concludes Allen's § 2255 motion should be DENIED as time-barred; this action will accordingly be DISMISSED WITH PREJUDICE in its entirety (Criminal Court Doc. 128).
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one-year statute of limitations applies to the filing of a § 2255 motion. See 28 U.S.C. § 2255. Title 28 U.S.C. 2255(f) provides, in relevant part, that the one-year limitations period for federal inmates seeking relief under this section 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 is 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.
A conviction generally becomes final for purposes of collateral review at the conclusion of direct review. Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001). When a criminal defendant pursues a "direct appeal through to a petition for certiorari in the Supreme Court, direct review is concluded when the Supreme Court either denies the petition or decides the case." United States v. Cottage, 307 F.3d 494, 498 (6th Cir. 2002); 28 U.S.C. § 2255(f)(1).
Here, Allen was sentenced on November 3, 2008 (Criminal Court Doc. 107). He pursued a direct appeal, and his judgment of conviction ultimately became final on December 13, 2010, when the Supreme Court denied certiorari. The statute of limitations in Allen's case began to run on December 14, 2010, and expired on December 13, 2011; thus, Allen was required to file his § 2255 motion no later than December 13, 2011. However, Allen's counsel did not file the instant Motion with the Court until December 15, 2011. Allen's § 2255 motion is accordingly time-barred, as it was filed two days after the expiration of the one-year statute of limitations for filing his § 2255 motion (Criminal Court Doc. 667). Consequently, the present action is untimely, absent the applicability of tolling.
A. Statutory Tolling