U.S. v. Burch, Criminal No. 95-40045-02-SAC.
| Decision Date | 08 September 1998 |
| Docket Number | Criminal No. 95-40045-02-SAC.,Civil No. 98-3284-SAC. |
| Citation | 37 F.Supp.2d 1249 |
| Parties | UNITED STATES of America, Plaintiff/Respondent, v. Gale F. BURCH, Defendant/Movant. |
| Court | U.S. District Court — District of Kansas |
Gale F Burch, Ft. Worth, TX, pro se.
Gerald G Burch, Lancaster, TX, pro se.
Sue Carpenter, Topeka, KS, pro se.
Steven E. Emke, Grounds, Rose & Emke, Kansas City, MO, pro se.
Gordon A. Harness, Newcastle, OK, pro se.
Gary Hill, El Paso, TX, pro se.
Joseph D. Johnson, Joseph D. Johnson, Chartered, Topeka, KS, pro se.
Eric Kjorlie, Topeka, KS, pro se.
Thomas G. Luedke, Office of United States Attorney, Topeka, KS, pro se.
Bruce W. Simon, Simon & Simon, Kansas City, MO, pro se.
Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, pro se.
Michelle Wallace, Kansas City, MO, pro se.
On April 23, 1996, the jury returned a verdict finding the defendant, Gale F. Burch, guilty of conspiracy to possess with the intent to distribute 538 pounds of marijuana and possession with the intent to distribute 538 pounds of marijuana. See United States v. Burch, 928 F.Supp. 1066 (D.Kan.1996), aff'd, 113 F.3d 1247 (10th Cir.1997) (). Burch was sentenced to a 108 month primary term of incarceration. Burch appealed her convictions and sentence. On May 22, 1997, the Tenth Circuit issued an opinion affirming Burch's convictions and the sentence imposed by this court. See United States v. Burch, 113 F.3d 1247 (10th Cir.1997) ().1 On June 30, 1997, the Tenth Circuit issued the mandate in this case. See Dk. 227 (). Burch did not file a petition for a writ of certiorari with the United States Supreme Court.
This case comes before the court upon Burch's "Motion Pursuant To 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody" (Dk.241). That motion, which essentially raises without meaningful elaboration an ineffective assistance of counsel claim, was filed on August 31, 1998 — more than one year after the date the Tenth Circuit issued its mandate in this case. Accompanying the defendant's motion is a "Motion for Leave to File a Memorandum in Support of the Motion Under § 2255" (Dk.242). In that motion, Gale Burch states that she "is aware of the 1-year limitation period under § 2255 for her to file a post-conviction motion from the date the judgment is her case became final." Burch does not argue that her motion falls within one of the enumerated exceptions to the one-year period of limitations. Instead, she contends that her § 2255 motion is timely because the one-year limitation did not commence on June 30, 1997,2 but instead until 90 days after that date — representing the last day she could have filed a petition for certiorari. See Sup. Ct.R. 13.
"On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA], Pub.L. No. 104-132, 110 Stat. 1217 (1996)." Hatch v. State of Okl., 92 F.3d 1012, 1014 (10th Cir.1996). Among other things, the AEDPA amended 28 U.S.C. § 2255. Title 28, section 2255 now 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.
. . . . .
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.
United States v. Simmonds, 111 F.3d 737, 744 (10th Cir.1997) (quoting United States v. Lopez, 100 F.3d 113, 116 (10th Cir.1996)) (footnote omitted).
Because Burch concedes that she did not file her § 2255 motion within one year of the date the Tenth Circuit issued its mandate, her motion is barred by the one-year time limitation unless she is entitled to an additional 90 days — the time period in which she could have petitioned the Supreme Court for certiorari but did not.3
"While § 2255 time bars any motion filed more than one year after the final judgment of conviction, it does not expressly define when a judgment of conviction becomes final." Kapral v. United States, 973 F.Supp. 495, 497 (D.N.J.1997).4 To decide whether Burch's § 2255 motion is time barred, the court must first determine what Congress intended when amended § 2255 to include the phrase "the date on which the judgment of conviction becomes final."
Although some courts, including the Tenth Circuit in an unpublished decision, see United States v. Moss, 149 F.3d 1192 (10th Cir.1998) (),5 have suggested that the one-year period of limitation runs from the last day that certiorari could have been sought (but was not), see, e.g., United States v. Forbes, 1998 WL 486339 (4th Cir. Aug.7, 1998) (); Payne v. United States, 1998 WL 71652 (S.D.N.Y. Feb.18, 1998) ( ); Andres v. United States, 1997 WL 778760 (S.D.N.Y. Dec.15, 1997) ( ), this court is persuaded that it is improper to include the additional ninety-day period in which the defendant could have petitioned the Supreme Court for certiorari but did not in determining the finality of the judgment of conviction for purposes of calculating the one-year period of limitation.
In Gendron v. United States, 154 F.3d 672 (7th Cir.1998), the Seventh Circuit recently addressed the precise issue implicated by Burch's motion. For purposes of analyzing the timeliness issue, the facts are essentially indistinguishable from the case at bar. In Gendron, the Seventh Circuit issued the mandate affirming Gendron's conviction and sentence on November 4, 1996. Gendron did not file a petition for certiorari with the Supreme Court. Gendron did not file his § 2255 motion until November 18, 1997, more than one year after the Seventh Circuit issued its mandate. Using November 4, 1996 — the date the Seventh Circuit issued its mandate — as the starting point for the one-year limitations period, the district court concluded that the period of limitations for filing a § 2255 motion had run. The district court denied Gendron's petition and dismissed the action with prejudice.
On appeal, Gendron argued
that even though he elected not to file a petition for certiorari with the Supreme Court, the district court should have excluded from the limitations period the 90 days he had to file such a petition. See Sup.Ct.R. 13. According to Gendron, the period of limitations should start to run, not from the date our mandate was issued, but on the date that review by the Supreme Court was precluded. See id. at 13.1, 13.3. Therefore, Gendron insists, he had until January 25, 1998, to file his § 2255 motion. See id. at 13 .3. Because his motion was received by the district court on November 19, 1997, Gendron argues that his petition was timely filed.
Id. at 673. The Seventh Circuit rejected the defendant's argument, affirming the district court's dismissal:
In relevant part, the AEDPA amended § 2255 by adding the following language:
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; ...
We are left with the question of when a judgment is to be considered final. The Supreme Court has addressed the question of finality in the context of retroactivity. The Court defined a conviction as being final when "a judgment of conviction has been rendered, the availability of...
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U.S. v. Meador, 96-CR-113-C.
...the Circuit's mandate dismissing Meador's appeal as the date that his judgment of conviction became final. See also United States v. Burch, 37 F.Supp.2d 1249, (D.Kan.1998) (because defendant did not file her § 2255 motion within one year of the date that the Tenth Circuit issued its mandate......