The opinion of the court was delivered by: Seybert, District Judge
On March 12, 2010, Petitioner Calvin Samuel ("Petitioner' or "Samuel") filed a motion for an extension of time to file his habeas corpus petition pursuant to 28 U.S.C. § 2255. For the reasons that follow, Petitioner's motion is DENIED.
On November 1, 2006, Petitioner was indicted on two counts: (1) Conspiracy to obstruct commerce by robbery, 18 U.S.C. § 1951(a); and (2) Discharging a firearm during a crime of violence (18 U.S.C. § 924(c)(1)(A)(iii)). Although he initially plead not guilty, on July 6, 2007, Petitioner plead guilty to both counts. This Court imposed a sentence on October 6, 2008, mandating a total term of 180 Months: 120 Months on Count 1 and 60 Months on Count 2 (Consecutive). Upon release from imprisonment, Petitioner will be subject to a supervised release term of 5 Years: 3 Years on Count 1 and 5 Years on Count 2 (Concurrent). Finally, Petitioner was directed to pay a special assessment of $200.00 and restitution in the amount of $439,350.00. On March 12, 2010, Petitioner filed his current application.
I. Section 2255 Requirements And Statute Of Limitations
Section 2255 provides, in pertinent part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255. Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Congress imposed a one-year period of limitation on section 2255 motions, which runs, in this case, from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(1).
II. Jurisdiction Over Petitioner's Claims
A. Jurisdictional Requirements
In United States v. Leon, 203 F.3d 162 (2d Cir. 2000) (per curiam), the Second Circuit held that "a federal court lacks jurisdiction to consider the timeliness of a § 2255 petition until a petition is actually filed[,]" because prior to an actual filing, "there is no case or controversy to be heard[.]" Id. at 164. However, if and when Petitioner actually files a § 2255 petition, a district court may consider his argument that such a petition should be considered timely." Id.
In Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000), cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed. 2d 63 (2000), the Second Circuit held that the AEDPA's "one-year period [under 28 U.S.C. § 2244] is a statute of limitations rather than a jurisdictional bar so that courts may equitably toll the period." Id. at 17 (citing Calderon v. United States Dist. Court for the Cent. Dist. of Cal., 163 F.3d 530, 541 (9th Cir. 1998) (en banc)). Subsequently, the Court of Appeals held that the one year deadline the AEDPA imposed on the filing of section 2255 petitions similarly established a statute of limitations and is not a jurisdictional bar. Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001) (citing Moore v. United States, 173 F.3d 1131, 1134 (8th Cir. 1999)). The Court cautioned in Smith, however, that "[e]quitable tolling applies only in... rare and exceptional circumstance[s]," Smith, 208 F.3d at 17 (internal quotation marks omitted), and only where the defendant has "acted with reasonable diligence throughout the period he seeks to toll." See id. (citing Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996)); see also Valverde v. Stinson, 224 F.3d 129, 133-36 (2d Cir. 2000) (conducting equitable tolling analysis with respect to an untimely section 2254 petition); Warren v. Garvin, 219 F.3d 111, 113-14 (2d Cir. 2000) (same).
Taking the principles of Leon and Smith together, "a district court may grant an extension of time to file a motion pursuant to section 2255 only if (1) the moving party requests the extension upon or after filing an actual section 2255 motion, and (2) rare and exceptional circumstances warrant equitably tolling the limitations period." Green, 260 F.3d at 82-83. Thus, in this case, the Court must first decide whether Samuel's motion for an extension of time can be construed as a Section 2255 petition for purposes of timeliness.
B. Petioner's Motion For An Extension Of Time Is Untimely And Cannot Be Construed As A Section 2255 Petition Motion For ...