260 F.3d 78 (2nd Cir. 2001), 98-2061, Green v United States

Docket Nº:Docket No. 98-2061
Citation:260 F.3d 78
Party Name:DONALD GREEN, also known as Sly, also known as Stone, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
Case Date:July 27, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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260 F.3d 78 (2nd Cir. 2001)

DONALD GREEN, also known as Sly, also known as Stone, Petitioner-Appellant,


UNITED STATES OF AMERICA, Respondent-Appellee.

Docket No. 98-2061

United States Court of Appeals, Second Circuit

July 27, 2001

Argued: May 4, 2001

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[Copyrighted Material Omitted]

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MONICA R. JACOBSON, New York City (Alvy & Jacobson, New York City, of counsel), for Appellant.

WILLIAM J. HOCHUL, JR., Assistant United States Attorney, Western District of New York, Buffalo, NY (Denise E. O'Donnell, United States Attorney for the Western District of New York, Buffalo, NY, of counsel), for Appellee.

Before: MESKILL, KEARSE and SOTOMAYOR, Circuit Judges.

Judge Kearse concurs in a separate opinion.

MESKILL, Circuit Judge:

Petitioner-appellant Donald Green (Green) appeals an order of the United States District Court for the Western District of New York, Curtin, J., denying his motion for an extension of time to file a motion for relief pursuant to 28 U.S.C. §2255 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2255 provides, in pertinent part:

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.

Congress imposed a "1-year period of limitation" on section 2255 motions, which runs, in this case, from "the date on which the judgment of conviction becomes final."1 28 U.S.C. §2255(1).

The district court held that Green's time to file a section 2255 motion had already expired because his conviction became final more than one year before he filed his motion requesting an extension of time. We granted Green a certificate of appealability on the following issues: (1) whether a district court can grant an extension of

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time to file a section 2255 motion, (2) whether a timely motion for extension of time can be construed as a section 2255 motion for purposes of timeliness under the AEDPA, and (3) what date constitutes the date on which the judgment of conviction becomes final under the AEDPA.

We vacate the district court's order because we find that the district court did not have jurisdiction to rule on Green's motion for an extension of time absent the filing of a substantive section 2255 motion. In view of the facts of this case, however, the government has offered to waive its statute of limitations defense to permit Green to file a section 2255 motion.


A. Green's Trial and Appeal

On March 30, 1994, a jury returned guilty verdicts against Green for, inter alia, racketeering conspiracy, narcotics conspiracy, engaging in a continuing criminal enterprise and obstruction of justice, all arising out of Green's role as the leader of the "L.A. Boys" gang in Buffalo, New York. See United States v. Workman, 80 F.3d 688, 691-92 (2d Cir. 1996) (holding, on direct appeal, that the evidence showed "that Green was the leader of the L.A. Boys, and that he had orchestrated the enterprise's activities"). The district court sentenced Green to four concurrent life sentences, two concurrent twenty year sentences, a ten year concurrent sentence and fifteen concurrent four year sentences, all to follow an unexpired New York state murder sentence. Final judgment entered on July 29, 1994.

On March 27, 1996, we affirmed Green's conviction in all respects.2 See id. The United States Supreme Court denied Green's petition for writ of certiorari on October 21, 1996. See Green v. United States, 519 U.S. 955 (1996).

B. Green's Motion to Extend Time

On June 10, 1997, Green filed with the district court a "motion for [sic] extend time" to enlarge the time within which he could file a motion for relief pursuant to section 2255. The government opposed the motion on the ground that Green's time to move pursuant to section 2255 had expired on March 29, 1997, one year after we affirmed Green's convictions on direct appeal. On November 18, 1997, Green moved the district court to treat his previous motion for an extension of time as a motion for relief under section 2255. The government opposed this motion on timeliness grounds, and alternatively, argued that Green had not set forth sufficiently a claim for relief under section 2255.

On December 15, 1997, the district court summarily denied Green's motion for an extension of time on the grounds that Green's time to move pursuant to section 2255 had expired on July 29, 1995, one year after his conviction in the district court became final. Because Green had filed his first motion for an extension of time on June 10, 1997, the district court held that Green's time to file had lapsed and accordingly, that it was without jurisdiction to consider Green's motion.

On December 26, 1997, Green filed a timely notice of appeal. Green, incarcerated and pro se, tried for over two years to obtain appellate review of the district court's denial of his motion. On March 1, 2000, we granted Green a certificate of

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appealability and ordered assignment of appellate counsel. This appeal followed.


The questions authorized by the certificate of appealability are questions of law, which we review de novo. Triana v. United States, 205 F.3d 36, 40 (2d Cir.), cert. denied, 121 S.Ct. 378 (2000).

A. Whether a District Court Can Grant an Extension of Time to File a Section 2255 Motion

In answering the first question, we look to two of our prior decisions. In United States v. Leon, 203 F.3d 162 (2d Cir. 2000) (per curiam), we held that "a federal court lacks jurisdiction to consider the timeliness of a §2255 petition until a petition is actually filed." Id. at 164. Prior to an actual filing, "there is no case or controversy to be heard, and any opinion we were to render on the timeliness issue would be merely advisory." Id.; see also, e.g., United States Nat'l Bank of Or. v. Indep. Ins. Agents of Am., 508 U.S. 439, 446 (1993) (reaffirming the principle that "a federal court [lacks] the power to render advisory opinions" (quotation marks omitted)).3

Green has not yet filed a section 2255 motion with the district court. We concluded, in Leon, that "[i]f or when [petitioner] actually files a §2255 petition, the District Court and this court may consider his argument that such a petition should be considered timely." 203 F.3d at 164. Ordinarily, therefore, a federal court would not have jurisdiction to consider Green's motion to extend time.

Less than two weeks after we granted the certificate of appealability, we decided Smith v. McGinnis, 208 F.3d 13 (2d Cir.), cert. denied, 121 S.Ct. 104 (2000). In Smith, we "join[ed] our sister circuits" in holding that the AEDPA's "one-year period [under 28 U.S.C. §2244] is a statute of limitations rather than a jurisdictional bar so that courts may equitably toll the period." Id. at 17 (citing Calderon v. United States Dist. Court for the Cent. Dist. of Cal., 163 F.3d 530, 541 (9th Cir. 1998) (en banc)). We hold that the one year deadline the AEDPA imposed on the filing of section 2255 petitions similarly established a statute of limitations and is not a jurisdictional bar. See Moore v. United States, 173 F.3d 1131, 1134 (8th Cir. 1999) (noting that "[s]ection 2255 refers to the time limit as a `period of limitation' and as a `limitation period'"). We cautioned in Smith, however, that "[e]quitable tolling applies only in... rare and exceptional circumstance[s]," Smith, 208 F.3d at 17 (internal quotation marks omitted), and only where the defendant has "acted with reasonable diligence throughout the period he seeks to toll." See id. (citing Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996)); see also Valverde v. Stinson, 224 F.3d 129, 133-36 (2d Cir. 2000) (conducting equitable tolling analysis with respect to an untimely section 2254 petition); Warren v. Garvin, 219 F.3d 111, 113-14 (2d Cir. 2000) (same).

Two principles emerge from our decisions in Leon and Smith: a district court may grant an extension of time to file a motion pursuant to section 2255 only if (1) the moving party requests the extension upon or after filing an actual section 2255 motion, and (2) "rare and exceptional"

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circumstances warrant equitably tolling the limitations period.

B. Whether a Timely Motion for Extension of Time Can Be Construed as a Section 2255 Motion for Purposes of Timeliness under the AEDPA

It is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read "to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quotation marks omitted); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (holding that the allegations in a pro se complaint are "h[e]ld to less stringent standards than formal pleadings drafted by lawyers"); Liriano v. United States, 95 F.3d 119, 122 (2d Cir. 1996) (per curiam) (pro se supplemental brief "substantially constitutes the motion envisioned by §2244(b)(3)(A), and will be treated as satisfying the motion requirement").

We see no reason why the general rule should not apply to pro se motions filed pursuant to section 2255. Where a motion, nominally seeking an extension of time, contains allegations sufficient to support a claim under section 2255, a district court is empowered, and in some instances may be required, under Haines to treat that motion as a substantive motion for relief under section 2255. See Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998) (per curiam) (holding that a district court must review pro se petitions "with a...

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