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Michael C. Lewis, : A/K/A "Sweet-El v. United States of America

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


February 3, 2012

MICHAEL C. LEWIS, : A/K/A "SWEET-EL," PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.

The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY DOCUMENT

ELECTRONICALLY FILED

DOC #:

OPINION & ORDER

On or around March 17, 2010, pro se Petitioner Michael Corey Lewis ("Lewis") moved to be released from custody, arguing that the Court lacked jurisdiction over his case because he is a Moorish American National. The Court liberally construes Lewis's motion as one to vacate his sentence, pursuant to 28 U.S.C. § 2255. For the following reasons, Lewis's petition is DENIED.

BACKGROUND

On March 16, 2006, Lewis was charged in a one-count indictment with being a felon in possession of a handgun, in violation of 18 U.S.C. § 922(g)(1). (See No. 06 Cr. 245, Dkt. Nos. 1-7). On November 1, 2006, after numerous pre-trial proceedings, Lewis appeared pro se for trial, with the aid of standby counsel. Following jury selection, Lewis pled guilty. (Gov't Opp. Ex. B, Tr. 28:2-28:25).

On March 19, 2007, Lewis moved to withdraw his guilty plea. The Court denied Lewis's motion on March 30, 2007, finding that Lewis's plea was made knowingly and voluntarily. (Id. Ex. C, 7.) On December 4, 2007, the Court sentenced Lewis to 96 months' imprisonment. (Id. Ex. E.) During the sentencing proceeding, the Court notified Lewis of his right to appeal, and that he "must take an appeal within ten days." (See id. Ex. G.)

On January 8, 2008, Lewis filed an untimely notice of appeal. (Id. Ex. F.) This Court, pursuant to United States v. Batista, 22 F.3d 492, 493 (2d Cir. 1994), treated Lewis's notice of appeal as a request for an extension of time to appeal under Federal Rule of Appellate Procedure 4(b)(4). (Id. Ex. G.) On April 7, 2008, the Court denied Lewis's request, finding Lewis had now shown "good cause" or "excusable neglect" for his delayed filing. (Id.) On June 11, 2008, the Government moved to dismiss Lewis's appeal with the Second Circuit as untimely. (Id. Ex. H.) On July 30, 2008, the Second Circuit granted the Government's motion and dismissed Lewis's appeal for lack of jurisdiction. (Id. Ex. I.)*fn1

On March 17, 2010, Lewis filed the instant motion, which Lewis dated December 28, 2009, seeking release from custody because the Court did not have jurisdiction over Lewis's case. (See id. Ex. J.)*fn2 On June 2, 2010, Lewis filed additional materials raising the same arguments. (See id. Ex. K.)

The Government opposes Lewis's motion, arguing, inter alia, that Lewis's motion is time-barred.

DISCUSSION

1.The Statutory Limitations Period for § 2255 Motions Has Expired

A one-year statute of limitations applies to all motions brought pursuant to § 2255. See 28 U.S.C. § 2255(f). "[F]or purposes of § 2255 motions, an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires." Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005). While the Second Circuit has not explicitly addressed the issue, courts have applied this rule-that the judgment becomes final when the time for filing a direct appeal expires-even where the failure to file a direct appeal was due to an untimely notice of appeal. See United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008).

Lewis's motion is untimely under any possible computation. Lewis was sentenced on December 4, 2007. Excluding weekends, Lewis had until December 18, 2007 to file notice of an appeal.*fn3 Lewis did not file a notice of appeal by this date and, therefore, his judgment became final. Lewis then had


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