U.S. v. Timber
| Decision Date | 29 May 1998 |
| Docket Number | No. CRIM.A.1:89-CR-0189-JOF.,CRIM.A.1:89-CR-0189-JOF. |
| Citation | 7 F.Supp.2d 1356 |
| Parties | UNITED STATES of America v. William Lee TIMBER. |
| Court | U.S. District Court — Northern District of Georgia |
William Lee Timber, Talladega, AL, pro se.
David Wright, Assistant United States Attorney, Northern District of Georgia, Atlanta, GA, for Defendants.
This case is before the court on two motions to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255. Defendant William Lee Timber was convicted on November 2, 1989 of conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. § 846. On May 10, 1990, this court sentenced him to one hundred eighty months of incarceration and fined him $5,000.00. Defendant appealed this court's judgment to the United States Court of Appeals for the Eleventh Circuit, and it was affirmed on November 7, 1991. That affirmance was issued as mandate on December 3, 1991, and a certified copy of that order was received by this court on December 9, 1991.
Defendant's first motion was received by this court on April 28, 1997, and it alleges two grounds upon which he claims that his sentence should be vacated, set aside, or reduced. First, Defendant asserts that he received ineffective assistance of counsel during sentencing because his counsel failed to object to an improper enhancement based on an amount of cocaine erroneously attributed to him. Second, he contends that the court was in plain error when it failed to make factual findings in response to his counsel's objections to certain information contained in his presentence report. Defendant filed a second, amended § 2255 motion on July 14, 1997 in which he restated his original two assertions and added three additional grounds for relief. The court construes this second pleading as a motion to amend his pending § 2255 to assert the new claims.
Section 2255, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or the "Act"), Pub.L. 104-132, 110 Stat. 1214 (1996), provides that a motion to vacate, set aside, or reduce a sentence must be brought within one year of the latest of: the date on which the judgment of conviction becomes final; the date on which an impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed; the date on which the right asserted was initially recognized by the Supreme Court; or the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2255. Here, Defendant does not assert that he was barred from bringing this motion by any governmental action, that his sentence should be vacated, reduced or set aside due to a right newly recognized by the Supreme Court, or that new facts have recently come to light. Consequently, under a strict application of the amended statute, Defendant's motion would be time barred if brought more than one year after his conviction became final.1
Prior to the 1996 amendments, there was no time limitation placed upon a prisoner's ability to seek relief through § 2255. See Calderon v. United States District Court for the Central District of California, 128 F.3d 1283, 1286 (9th Cir.1997). Thus, before this time, Defendant had an unfettered right to bring a claim more than a year after his conviction was final. Retroactivity concerns do not generally bar a changed statute of limitations from being applied in a suit filed after the amendment's effective date. See Forest v. United States Postal Serv., 97 F.3d 137, 139-40 (6th Cir.1996); Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 890 (2d Cir.1995). The Supreme Court has stated, however, that:
[A]ll statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights.... It is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action.
Texaco, Inc. v. Short, 454 U.S. 516, 527, n. 21, 102 S.Ct. 781, 70 L.Ed.2d 738; see also Block v. North, 461 U.S. 273, 286 n. 23, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) () (quoting Texaco, 454 U.S. at 527 n. 21, 102 S.Ct. 781); Derstein v. Van Buren, 828 F.2d 653, 655 (10th Cir.1987) (); Hanner v. Mississippi, 833 F.2d 55, 57 (5th Cir.1987) (). As a result, the application of an amended statute of limitations without allowing a reasonable amount of time for those prisoners with existing causes of action to file suit would raise doubts as to the constitutionality of the new statute.
In order to avoid addressing this possible constitutional deficiency, many courts have read the amended section 2255 to include a "reasonable time" after its effective date of April 24, 1996 during which prisoners whose convictions had already become final could file their collateral attacks in federal court. See United States v. Lopez, 100 F.3d 113, 116-17 (10th Cir.1996); United States v. Simmonds, 111 F.3d 737, 745 (10th Cir.1997); Calderon, 128 F.3d at 1287; Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996), rev'd on other grounds, ___ U.S. ___, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Burns v. Morton, 134 F.3d 109 (3rd Cir. 1998); United States v. Flores, 135 F.3d 1000 (5th Cir.1998); Green v. Wharton, 1997 WL 404278 (N.D.Ga.1997) (Murphy, J.); Parker v. Johnson, 988 F.Supp. 1474 (N.D.Ga.1998) (Hunt, J.); Holmes v. Wharton, 1997 WL 115837 (N.D.Ga.1997) (Camp, J.); Zuluaga v. United States, 971 F.Supp. 616 (D.Mass.1997). Other courts, however, have taken the position that the application of the new limitations period does not pose a retroactivity problem and is more consistent with congressional intent in passing the AEDPA. See Clarke v. United States, 955 F.Supp. 593 (E.D.Va.1997) (); United States v. Bazemore, 929 F.Supp. 1567 (S.D.Ga.1996) (same); Curtis v. Class, 939 F.Supp. 703 (D.S.D.1996) (same); Vargas v. United States, 1997 WL 528303 (D.R.I.1997) (same). This court agrees that federal statutes should be construed to avoid serious doubts as to their constitutionality. See Communications Workers v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988); Ashwander v. TVA, 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936). Thus, the court hereby adopts the approach of those courts that allow a reasonable time after the effective date of the AEDPA during which prisoners whose convictions have already become final may file their claims.
Among the circuit courts that have adopted this approach, however, two different views have emerged as to what constitutes a "reasonable time." On the one hand, the Third, Fifth, Seventh, Ninth, and Tenth Circuits have adopted the firm rule that one year constitutes a "reasonable time" for a prisoner whose conviction became final prior to the effective date of the AEDPA to file a section 2255 motion. See United States v. Flores, 135 F.3d 1000, 1006 (5th Cir.1998); Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998); Caldaron, 128 F.3d at 1286-87; United States v. Simmonds, 111 F.3d 737 (10th Cir.1997); Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996), rev'd on other grounds, ___ U.S. ___, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under this view, therefore, a prisoner with a conviction that became final prior to April 24, 1996 would have until April 23, 1997 to file his challenge in federal court. In contrast, the Second Circuit has adopted a more flexible "ad hoc" approach as to what constitutes a "reasonable time" for such prisoners to file their motions. See Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997). In rejecting a firm one-year rule, the Second Circuit explained that "[i]n circumstances ... where a state prisoner has had several years to contemplate bringing a federal habeas corpus motion, we see no need to accord a full year after the effective date of the AEDPA." Peterson, 107 F.3d at 93.
In light of the lack of Eleventh Circuit guidance on this issue, district courts in this circuit have split on which of these two approaches to follow. Compare Parker v. Johnson, 988 F.Supp. 1474 (N.D.Ga.1998) (Hunt, J.) (), with Syms v. Chapman, No. CV 497-128, 1997 WL 561313 (Edenfield, J.) (S.D.Ga. Aug. 19, 1997) (); see also Bazemore, 929 F.Supp. at 1567 (); Holmes, 1997 WL 115837 (). The Fifth Circuit in Flores offers perhaps the best justification for the adoption of a bright line "one year" grace period. In its opinion, the Fifth Circuit recognized that a strict application of the AEDPA would impermissibly close the courthouse doors on those prisoners with convictions over a year old who had the right to bring federal habeas motions in the days preceding the enactment of the new time limit. Flores, 135 F.3d at 1004. In determining what would constitute a "reasonable time" for these prisoners to file their motions, the court quoted with approval a rule of statutory construction from an old state case providing that "a reasonable...
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Finch v. State
...which prisoners whose convictions had already become final could file their collateral attacks in federal court." United States v. Timber, 7 F.Supp.2d 1356, 1358 (N.D.Ga.1998). See, e.g., Rogers v. United States, 180 F.3d 349 (1st Cir.1999); Libby v. Magnusson, 177 F.3d 43 (1st Cir.1999).5 ......