U.S. v. Smith, Criminal No. 2:93CR162.

• Decision Date: 05 June 1997
• Docket Number: Criminal No. 2:93CR162.
• Citation: 966 F.Supp. 408
• Parties: UNITED STATES of America, v. Kemba Niambi SMITH, Petitioner.
• Court: U.S. District Court — Eastern District of Virginia

966 F.Supp. 408

UNITED STATES of America, v. Kemba Niambi SMITH, Petitioner.

Criminal No. 2:93CR162.

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

June 5, 1997.

Gerald Zwerkin, Richmond, VA, for petitioner.

MEMORANDUM AND FINAL ORDER

DOUMAR, District Judge.

Before the Court is Kemba Niambi Smith's Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255, filed April 23, 1997. In light of the recent amendments to § 2255, the Court concludes that this Motion has been time-barred. Accordingly, the Motion is DISMISSED.

Petitioner pled guilty on October 17, 1994 to three counts of an indictment charging conspiracy to possess with intent to distribute in excess of 50 grams of cocaine base in violation of 21 U.S.C. § 846, conspiracy to launder money in violation of 18 U.S.C. §§ 371, 1956(a)(1)(B)(i), and making or concealing materially false facts or statements to a federal agent in violation of 18 U.S.C. § 1001. The Honorable Richard Kellam entered judgment against Smith on April 21, 1995, and Smith was sentenced to a term of 294 months. Smith appealed her conviction to the Court of Appeals for the Fourth Circuit, and that appeal was dismissed by order dated July 19, 1995.

Petitioner has now filed the instant motion, asking that her sentence be vacated, set aside, or corrected. She argues: (1) That her guilty plea was not knowing and voluntary and that she was incompetent at the time of the guilty plea; (2) that the Government breached the plea agreement; (3) that her sentence is unlawful and excessive; (4) that her sentence should be vacated because it is unconstitutionally based upon a distinction between crack cocaine and powder cocaine; and (5) that she received ineffective assistance of counsel.

The laws governing Section 2255 motions have recently been amended. On April 24, 1996, the President signed Public Law No. 104-132, entitled the "Antiterrorism and Effective Death Penalty Act of 1996." Pub.L. No. 104-132, 110 Stat. 1214 (1996). Among this Act's provisions are substantial changes to § 2255. Relevant to this Motion, the Act amended § 2255 by adding the following language:

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.

This Court recently held that these amendments do not contain a grace period in which prisoners are given additional time to file, and that the limitations period took effect immediately upon the date of enactment. Clarke v. United States, 955 F.Supp. 593 (E.D.Va.1997) (publication forthcoming). Thus, to determine whether the petitioner timely filed her Section 2255 motion, the Court must measure one year from the most recent date provided by subsections (1) through (4) of Section 2255.

Smith appealed her January 1995 conviction. The appeal was dismissed by the Court of Appeals for the Fourth Circuit on July 19 1995. She could petition for a writ of certiorari to the Supreme Court within ninety days of July 19, 1995. October 17, 1995 is thus the latest possible date her conviction could be regarded as becoming final. Smith has not alleged any government impediment blocking her action, and she has not alleged discovery of any new evidence that was previously unavailable to her. Smith has not claimed the benefit of any subsequently decided Supreme Court cases that established a new right. Accordingly, Smith meets none of the criteria for extending the period during which she could file a motion based on Section 2255. Accordingly, her claim filed April 23, 1997 was not timely filed under the new limitations period, and it is ordered DISMISSED.

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