The opinion of the court was delivered by: Munson, Senior District Judge.
MEMORANDUM DECISION AND ORDER
The petitioner, Justine Moore, filed for a writ of habeas
corpus pro se pursuant to 28 U.S.C. § 2241. On January 7,
1999, in the United States District Court for the Northern
District of New York, before the Hon. Howard G. Munson,
petitioner pleaded guilty to a single count of an indictment
charging her with possession with intent to distribute cocaine
base (crack) in violation of 21 U.S.C. § 841(a)(1) and 851. She
received a sentence of 240 months imprisonment followed by ten
years of supervised release. The Second Circuit Court of Appeals
affirmed petitioner's conviction on November 29, 1999, and
denied her motion for a rehearing on January 20, 2000. No
further appeal proceedings were instituted by petitioner.
On July 13, 2001, petitioner filed a petition for a writ of
habeas corpus pro se pursuant to 28 U.S.C. § 2241, in the
United States District Court, District of Connecticut. Her
petition challenged the legality of her conviction and sentence,
and raised one ground for relief, that the trial court failed to
submit each element of her offense to a jury as required by the
United States Supreme Court's decision Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The
Connecticut district court found that 28 U.S.C. § 2241 petition
generally challenges the execution of a sentence, and not the
legality of the petitioner's conviction and sentence. The proper
way to make the latter challenge is by bringing a motion in the
court where the petitioner was sentenced, pursuant to
28 U.S.C. § 2255 to vacate, set aside or correct a sentence. The remedy
afforded under § 2241 is not an additional, alternative or
supplemental remedy to that prescribed under § 2255. Charles v.
Chandler, 180 F.3d 753, 758 (6th Cir. 1999).
The court then concluded that it would be in the interest of
justice to transfer the petition to the Northern District of New
York under 28 U.S.C. § 1631 as a § 2255 motion. The Second Circuit
has held, however, that when a petitioner had never filed a §
2255 motion, a district court may not recharacterize a motion
purportedly made under some other rule as a § 2255 motion unless
the district court finds that, notwithstanding its designation,
the motion should be considered as made under § 2255 because of
the nature of the relief sought, and offers the movant the
opportunity to withdraw the motion rather than have it so
recharacterized. Adams v. United States, 155 F.3d 582 (2d Cir.
By order dated November 14, 2001, the court informed
petitioner that it decided to recharacterize her § 2241 petition
as a § 2255 motion and transfer it to the Northern District of
New York. In a letter dated November 30, 2001 petitioner
consented to this proposed disposition of her § 2241 petition,
and the case was transferred to this court by order entered
January 15, 2002.
(1) the date on which the judgment of
conviction becomes final;
(2) the date upon which the impediment 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 government 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 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.
It is apparent that the limitations question in the instant
case is only concerned with # 1 above, the date on which
petitioner's judgment of conviction became final. There is no
question that the one year limitation period for bringing a §
2255 motion in this case expired at least four months before
petitioner filed her habeas petition on July 13, 2001. Her
conviction was affirmed by the Second Circuit Court of Appeals
on November 29, 1999, and no further review by any court was
sought. Therefore, petitioner's § 2255 one year limitation
period expired on November 29, 2000, and even if the 90 day time
period in which she would have had to seek certiorari with the
United States Supreme Court were included in determining the
date on which her conviction became final, that date would then
become February 28, 2001, and petitioner's § 2255 motion would
still be untimely. Williams v. Artuz, 237 F.3d 147, 151 (2d
Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 279, 151
L.Ed.2d 205 (2001). The termination of the limitation statute in
the instant case commented on by the Connecticut district court
in a footnote on page 4 of its order of November 14, 2001, that
recharacterized the § 2241 habeas petition as a § 2255 motion.
The court stated "[a]lthough it appears that the statute of
limitations had run in this case, there are exceptions to the
statute of limitations as well as the possibility of equitable
tolling." The AEDPA's one year period of limitations is not
jurisdictional and, therefore, is subject to equitable tolling.
Taliani v. Chrans, 189 F.3d 597-98 (7th Cir. 1999).
The Second Circuit has adopted the doctrine of equitable
tolling in the context of AEDPA's statute of limitations
provisions. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
In order to equitably toll the one-year period of limitations,
petitioner must show that extraordinary circumstances prevented
her from filing on time. Johnson v. Nyack Hospital, 86 F.3d 8,
12 (2d Cir. 1996). "[A] petitioner's own behavior . . . may
. . . fatally undermine his claim that `rare and extraordinary'
or `exceptional' circumstances warrant equitable tolling."
Valverde v. Stinson, 224 F.3d 129, 133 n. 3 (2d Cir. 2000).
This is certainly true in the case at bar where in paragraph 6
of her habeas petition she "contends that 28 U.S.C. § 2255
provides an inadequate remedy. Since Petitioner is out of time
to file a Sec. 2255 motion, relief sought pursuant to Sec. 2255
The court concludes that petitioner is procedurally barred
from pursuing relief under § 2255, and further finds that her
claims under Apprendi are without merit because they are
procedurally defaulted, and even if they ...