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SHANDS v. U.S.

United States District Court, S.D. New York


January 13, 2005.

FRED SHANDS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

Movant pled guilty to mail fraud and conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 371, 1341, and 2. Movant did not appeal the conviction but now seeks relief pursuant to 28 U.S.C. § 2255 on the ground that his sentence violates the rule articulated in Blakely v. Washington, 124 S.Ct. 2531 (2004) and yesterday made applicable to the United States Sentencing Guidelines in Booker and Fanfan.

On November 1, 2004, the Court directed movant to show cause, within 60 days, why the motion should not be dismissed as untimely. Movant has not responded to the order.

  The one-year statute of limitations under AEDPA typically begins to run from the date on which the judgment of conviction becomes final unless one of three special circumstances enumerated in § 2255 is met. Where, as here, a federal defendant does not seek appellate review, his conviction becomes final on the day after his time to appeal expires. See Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000). Here, the judgment was entered on February 26, 2003 and became final on or about March 13, 2003. See Fed.R.App.P. 4(b) (defendant has ten days within entry of judgment to file a notice of appeal). But movant did not deliver his motion papers to prison officials until, at the earliest, July 21, 2004, assuming that he delivered them on the day he signed them. The motion is more than four months late.

  Accordingly, the motion is denied. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 915(a)(3). The Clerk shall close the case.

  SO ORDERED.

20050113

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