United States District Court, S.D. New York
January 13, 2005.
FRED SHANDS, Movant,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
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.
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