Clarke v. U.S.

• Decision Date: 20 February 1997
• Docket Number: Criminal Action No. CR 88-126-N.,Civil Action No. 2:96cv1020.
• Citation: 955 F.Supp. 593
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Devon CLARKE, Petitioner, v. UNITED STATES of America, Respondent.

955 F.Supp. 593

Devon CLARKE, Petitioner, v. UNITED STATES of America, Respondent.

Civil Action No. 2:96cv1020.

Criminal Action No. CR 88-126-N.

United States District Court, E.D. Virginia, Norfolk Division.

February 20, 1997.

Devon Clarke, Ft. Dix, NJ, pro se.

OPINION AND ORDER

DOUMAR, District Judge.

This matter is before the Court on petitioner's pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence by a person in federal custody. Petitioner has also filed a request to substitute a proofread copy of his Section 2255 motion and brief for the copies he originally filed. That request is hereby GRANTED. For reasons discussed below, however, the petitioner's Section 2255 motion is untimely, and therefore is DENIED. In addition, Diane S. Lepley, Esq. has filed — purportedly on behalf of the petitioner — a "Motion for Leave to Enter Appearance" on this matter. For reasons discussed below, Ms. Lepley's motion to appear pro hac vice also is DENIED.

I. Background

Petitioner and his codefendants were charged in a thirteen-count indictment with a variety of drug-related offenses. Counts One, Two, Four, Six, Seven, Eight, Twelve, and Thirteen specifically charged petitioner with criminal activity. On January 17, 1989, petitioner pled guilty to a superseding criminal information, which charged petitioner with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. In return, all eights counts of the indictment specifically charging the defendant were dismissed.

On March 29, 1989, this Court sentenced petitioner to a term of one hundred and seventy-five (175) months imprisonment. The Fourth Circuit affirmed both this Court's acceptance of petitioner's guilty plea and this Court's imposition of sentence on February 26, 1990. United States v. Clarke, No. 89-5085, 1990 WL 26893 (4th Cir.1990). The time period in which petitioner could have filed a petition for writ of certiorari with the United States Supreme Court lapsed ninety days later on May 27, 1990. S.Ct.R. 13(1).

Well over six years later, on October 21, 1996, petitioner filed in this Court the instant pro se Section 2255 motion, offering to the Court a wide selection of arguments supporting his motion, including (1) that petitioner's trial counsel was ineffective, (2) that petitioner's guilty plea was not knowing and voluntary, (3) that petitioner's appellate counsel was ineffective, (4) that this Court violated petitioner's due process rights in making unreasonable inferences from evidence produced at sentencing, (5) that this Court failed to consider relevant Sentencing Guideline factors in imposing a fine, and (6) that petitioner should have received a reduction for acceptance of responsibility despite his refusal to admit certain conduct. On November 8, 1996, petitioner requested that this Court substitute a proof-read copy of his pro se motion and supporting brief for the motion and brief filed on October 21, 1996. Also on November 8, 1996, Diane S. Lepley, Esq. filed her motion for leave to enter an appearance pro hac vice in this case.

As requested by petitioner, the Court only considered the proofread documents that petitioner submitted on November 8, 1996.

II. Analysis

The statute upon which petitioner relies, 28 U.S.C. § 2255, as amended on April 24, 1996 by Section 105 of the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132, (hereinafter AEDPA), provides in relevant 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.

....

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.

Thus, to determine whether the petitioner timely filed his Section 2255 motion, the Court must measure one year from the most recent date provided by subsections (1) through (4) of Section 2255.

Subsection (1) directs the Court to measure when petitioner's conviction became final. Section 2255 does not define exactly when a judgment of conviction is final. Possible dates include the date on which this Court issued judgment, the date on which the Fourth Circuit affirmed this Court, and the date after which the petitioner could no longer petition the Supreme Court for a writ of certiorari. For the sake of this motion only, this Court will assume the latest possible date — May 27, 1990, the date on which petitioner could no longer seek direct review by the Supreme Court. See United States v. Bazemore, 929 F.Supp. 1567, 1569-70 (S.D.Ga.1996) (assuming without deciding that a conviction becomes final under Section 2255 upon expiration of the time for seeking direct review).

Subsections (2) and (3) do not apply in this case. Petitioner makes no claim that a new Supreme Court case retroactively applies to his motion, nor does petitioner claim that he was prevented from filing this motion by government action.

On March 29, 1989, this Court issued an order adjudging petitioner guilty of violating 21 U.S.C. § 848 and sentencing petitioner to a term of imprisonment. Thus, under subsection (4), March 29, 1989 is the date by which the facts allegedly supporting petitioner's claims regarding his plea and sentencing could have been discovered. In addition, petitioner could have discovered the facts allegedly supporting petitioner's claim that appellate counsel was ineffective by February 26, 1990, the date on which the Fourth Circuit affirmed this Court.

Thus, subsection (1) provides petitioner with the most recent date, May 27, 1990, from which this Court must measure one year to determine whether petitioner timely filed his motion. One year after May 27, 1990 is May 27, 1991. Petitioner filed his motion on October 21, 1996, more than five years after the limitation period ended on May 27, 1991. Therefore, by its own plain language, Section 2255 time-bars petitioner from bringing his Section 2255 motion.

Undoubtedly, prior to the AEDPA's amendments to Section 2255, no specific limitations period applied to Section 2255 motions. Petitioner filed the instant motion, however, nearly six months after the new one-year limit became effective on April 24, 1996. The one-year limit seems fully enforceable in the instant case, because courts should "apply the law in effect at the time it renders its decision." Bradley v. Richmond Sch. Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974).

Nevertheless, courts have split on the issue of whether the new one-year limit should be applied to petitions filed after the effective date of the AEDPA. Compare Harold v. United States, 932 F.Supp. 705 (D.Md.1996) (applying one-year limit to Section 2255 petition filed after effective date of AEDPA); United States v. Bazemore, 929 F.Supp. 1567 (S.D.Ga.1996) (same), with Smith v. United States, 945 F.Supp. 1439 (D.Colo.1996) (creating a grace period after the effective date of AEDPA to file an otherwise untimely Section 2255 petition). A similar split in authority exists regarding the timeliness of petitions filed under 28 U.S.C. § 2254, which section the AEDPA also amended to provide a one-year limitations period. Compare Curtis v. Class, 939 F.Supp. 703 (D.S.D.1996) (applying one-year limit to Section 2254 petition filed after effective date of AEDPA), with Duarte v. Hershberger, 947 F.Supp. 146 (D.N.J.1996) (creating a grace period after the effective date of AEDPA to file an otherwise untimely Section 2254 petition); Flowers v. Hanks, 941 F.Supp. 765 (N.D.Ind.1996) (same).¹ Retroactivity concerns appear to have troubled those courts that felt obliged to create a grace period following the effective date of the AEDPA.

In Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court set forth its "most recent and definitive discussion of the retroactive application of new statutory provisions." Satcher v. Netherland, 944 F.Supp. 1222, 1246 (E.D.Va.1996). The Court in Landgraf held that "[w]hen a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach." Landgraf, 511 U.S. at 280, 114 S.Ct. at 1505. If the statute contains no express command, "the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id.

The Court in Landgraf pointed out, however, that "[a] statute does not apply `retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law." Id. at 269, 114 S.Ct. at 1499. Moreover, changes in procedural rules "may often be applied in suits arising before their enactment, without raising concerns...