The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
This case comes before the Court on a motion by petitioner under 28 U.S.C. § 2255 to vacate his sentence. In particular, petitioner seeks to amend his sentence to remove a two-level enhancement imposed under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm in connection with possession of a quantity of cocaine base. Petitioner seeks the amendment of his sentence in an effort to persuade or pressure the Bureau of Prisons ("BOP") to accept him into a drug treatment program. For the reasons below, the Court denies petitioner's motion.
On September 21, 2006, a grand jury returned a three-count indictment charging petitioner with possession of a quantity of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 844(a), and possession of a firearm, in violation of 18 U.S.C. § 924(c)(1). On October 11, 2007, petitioner and his counsel entered a plea agreement with the government. In the plea agreement, petitioner agreed to plead guilty to Count One of the indictment charging him with a violation of Section 841(a)(1). In paragraph eight of the plea agreement, petitioner agreed to the application of U.S.S.G. § 2D1.1(b)(1), a two-level sentencing enhancement for possession of a dangerous weapon including a firearm. In paragraphs 21 and 22 of the plea agreement, petitioner agreed to waive his right to an appeal or collateral attack of any sentence that fell within or below the proposed sentencing range of 70--87 months. On February 7, 2008, the government filed a Statement with Respect to Sentencing Factors in which it adopted the findings of the Pre-Sentence Report ("PSR") that petitioner's final offense level should be 25, Category I, with a proposed sentencing range of 57--71 months. Petitioner adopted the factual and legal findings of the PSR in a statement filed on February 8, 2008. Petitioner was sentenced on February 12, 2008 to the statutory minimum term of imprisonment of 60 months. At sentencing, after the sentence was announced, the Court advised petitioner's counsel that it would recommend petitioner for the 500-hour Residential Drug Abuse Treatment Program ("RDAP"), 28 C.F.R. § 550.53. The Clerk of the Court docketed the final judgment on February 21, 2008.
On March 16, 2009, petitioner filed the pending motion to vacate under 28 U.S.C. § 2255. Petitioner raised three issues in his motion papers. Petitioner argued that he has grounds to excuse the late filing of motion. Petitioner also asserted that he has a legal right to "Court-recommended" drug treatment while in prison. Finally, petitioner claimed in his motion papers that the BOP has denied his entry into RDAP because of the two-level sentencing enhancement for possession of a firearm.*fn1 In response, petitioner requested removal of the sentencing enhancement from his sentence, not only because it supposedly was unjustified but also because removal would eliminate the only reason that the BOP had to exclude petitioner from RDAP.
In opposition to petitioner's motion, the government filed response papers on May 14, 2009. The government argued that petitioner's motion is untimely, that petitioner waived his right to a collateral attack on the sentence, and that the two-level sentencing enhancement was applied correctly.
Timeliness of Petitioner's Motion
As a preliminary matter, the Court notes that petitioner's motion to vacate is untimely. Under 28 U.S.C. § 2255(f), petitioner had one year to file the pending motion, running from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion 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 governmental 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 to cases 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.
Based on the information that petitioner has submitted with his motion papers, Subsection 2255(f)(1) appears to be the only deadline that applies to the pending motion. Petitioner's judgment became final when it was docketed on February 21, 2008. Petitioner never took or perfected an appeal in this case. Therefore, petitioner had until February 21, 2009 to make the pending motion. Petitioner has not offered any reason why the issues that he brings to the Court's attention now could not have been raised earlier than February 21, ...