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DAVIS v. U.S.

August 11, 2004.

KEITHROY DAVIS, Petitioner,
v.
U.S., Respondent.



The opinion of the court was delivered by: JOHN KOELTL, District Judge

OPINION and ORDER

Keithroy Davis, appearing pro se, moves pursuant to 28 U.S.C. § 2255 to vacate his sentence. The petitioner claims that the Court erred in applying the sentencing enhancements in the United States Sentencing Guidelines ("U.S.S.G."), specifically that the Court incorrectly applied (1) a five-level enhancement for a loss in excess of $10,000; and (2) a two-level enhancement for "more than minimal planning." For the reasons set forth below, the petition is dismissed.

I.

  The petitioner was charged in a one-count Indictment filed on May 15, 2000. The Indictment charged the petitioner with one count of unlawfully, willfully, and knowingly buying, receiving, concealing, and having in his possession, stolen mail matter, specifically approximately twenty-one stolen United States Treasury checks totaling approximately $10,417, in violation of 18 U.S.C. § 1708.

  On November 8, 2000, the petitioner entered a plea of guilty to the charge in the Indictment. (Transcript of Plea Allocution dated Nov. 8, 2000 ("11/8/00 Tr.") attached as Ex. A to Govt. Ltr. at 4-5.) On June 11, 2001, this Court sentenced the petitioner principally to a prison term of 18 months, to be followed by three years' supervised release. (Transcript of Sentencing dated June 11, 2001 ("6/11/01 Tr.") attached as Ex. B to Govt. Ltr. at 21-22.) The Court also ordered that the petitioner pay a $100 special assessment. (Id. at 23.) Pursuant to U.S.S.G. § 2B1.1(b)(1)(F),*fn1 the Court increased the petitioner's base offense level of four by five levels to nine because the intended loss exceeded $10,000. The Court added two levels pursuant to U.S.S.G. § 2B.1(b)(4)(A) because the offense involved more than minimal planning, and subtracted two levels pursuant to U.S.S.G. § 3E1.1(a) based on the petitioner's acceptance of responsibility for his offense. The total offense level was therefore nine, the Criminal History Category was five, and the Guideline Sentencing Range was 18 to 24 months. (Id. at 18.) The petitioner raised no objection to the calculation of his offense level. (Id. at 12-13, 21.) Final judgment was filed on June 20, 2001, and the petitioner did not appeal his sentence.

  On September 12, 2002, the petitioner filed a petition pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania (Petition for Relief Pursuant to Title 28 U.S.C. § 2241, dated Aug. 24, 2002 ("§ 2241 Petition") attached as Ex. C to Govt. Ltr.) The § 2241 Petition raised the same challenges that the petitioner raises before this Court, specifically that this Court erred in: (1) applying a five-point enhancement for a loss exceeding $10,000; and (2) applying a two-point enhancement for "more than minimal planning." (Id. at 6-10.) On November 14, 2002, the United States District Court for the Middle District of Pennsylvania dismissed the § 2241 Petition for lack of jurisdiction because the petitioner failed to show why he did not pursue a § 2255 petition before the sentencing court. Davis v. Gerlinksi, 02-1627 (M.D. Pa. Nov. 14, 2002) (slip op.). On November 25, 2003, the petitioner filed this motion pursuant to 28 U.S.C. § 2255.*fn2

  II. The Government argues that the petitioner's motion is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which imposes a one-year statute of limitations on motions to vacate, set aside, or correct a sentence imposed in federal court. See 28 U.S.C. § 2255. The limitations period for this claim began to run from the date on which the judgment of conviction became final.*fn3 Because the petitioner did not appeal, the judgment became final on July 5, 2001, ten days after the final judgment was entered. See, e.g., Sharpe v. United States, 2003 WL 1964048, 02 Civ. 5605 (S.D.N.Y. Apr. 24, 2003).

  Giving the petitioner credit for every possible tolling period, this petition is untimely because it was filed over one year after the July 5, 2002 expiration of the statute of limitations imposed by AEDPA. Even if the Court were to rely on the filing of the § 2241 Petition in the Middle District of Pennsylvania, this petition would still be untimely because the § 2241 Petition was filed over one month after the statute of limitations had expired. The petitioner argues that the statute of limitations should be equitably tolled. The limitations period under § 2255 may be equitably tolled in rare and exceptional circumstances where the petitioner demonstrates that those circumstances prevented the petitioner from filing the petition on time and that the petitioner acted with reasonable diligence throughout the period the petitioner seeks to toll. See Green v. United States, 260 F.3d 78, 82-83 (2d Cir. 2001); Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000) (listing requirements for equitable tolling for a state habeas corpus petition). In this case, the petitioner has not indicated any extraordinary circumstances that prevented him from filing his petition, and he was aware of all of the grounds he currently asserts from the time of his sentence. (6/11/01 Tr. at 2, 12, 18-19.)

  The petitioner claims that he received ineffective assistance of counsel and erroneously relies on Gutierrez vs. Ashcroft, 289 F. Supp.2d 555 (D.N.J. 2003), as support for an equitable tolling argument. In that case, the Court held that the limitations period for a habeas petition filed by an alien would be equitably tolled due to ineffective assistance of counsel where counsel affirmatively and knowingly misrepresented that such a petition had been filed. Gutierrez, 289 F. Supp.2d at 568. Here, the petitioner makes no showing that his counsel affirmatively or knowingly misrepresented that he had filed a § 2255 petition. Moreover, Gutierrez found equitable tolling only after finding that the misrepresentations resulted in clear prejudice to the petitioner. Gutierrez, 289 F. Supp.2d at 568. In this case, for reasons discussed more fully below, the petitioner's claims are without merit, and therefore he cannot show such prejudice.

  For all the reasons stated above, the petitioner's motion is untimely and should be dismissed on that ground alone.

  III.

  The petitioner's motion is also procedurally barred.

  A.

  The Government argues that the petitioner is procedurally barred from raising any of his claims because they were not raised on direct appeal. The general rule is that claims not raised on direct appeal by federal prisoners "may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003); see Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982). "A fortiori, such a ...


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