United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
pro se, movant Thamud Eldridge
(“Eldridge” or “movant”), a federal
prisoner, has requested permission to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. Doc. 172.
The Court has reviewed movant's submissions in connection
with his motion to proceed in forma pauperis, finds
that he meets the statutory requirements, and therefore
grants his request to proceed as a poor person.
4, 2009, Eldridge was convicted, following a jury trial, of
one count of possession of a firearm and ammunition by a
felon in violation of 18 U.S.C. § 922(g)(1); one count
of possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1); and one count of
possession of marijuana in violation of 21 U.S.C. §
844(a). On August 28, 2009, Eldridge was sentenced to a term
of 97 months imprisonment with a six-year term of supervised
release. See doc. 120. Presently before the Court is
Eldridge's motion to vacate his sentence pursuant to 28
U.S.C. § 2255. Docs. 166, 173. For the reasons discussed
below, plaintiff's motion is denied.
The Pending § 2255 Motions
April 9, 2013, Eldridge moved to vacate his sentence pursuant
to 28 U.S.C. § 2255, contending that (1) the Court
failed to decide a counseled motion pursuant to Fed.R.Civ.P.
33 which was filed on January 4, 2011; and (2) he is entitled
to a new trial based on a claim that a government witness
committed perjury at trial. The government responded to
Eldridge's motion on May 31, 2013, contending that it
should be dismissed as meritless. On December 11, 2015,
Eldridge filed an amended motion to vacate pursuant to §
2255, arguing that (1) a DNA report dated December 29, 2009
was Brady material withheld from Eldridge at trial;
(2) Eldridge was denied effective assistance of counsel at
trial; and (3) Eldridge was denied a fair trial because the
government introduced statements of the accused and because
Eldridge's counsel was denied the opportunity to
cross-examine the arresting officer regarding his alleged
record of excessive force.
Court notes that Eldridge appealed his judgment of
conviction, and the judgment was affirmed by the Second
Circuit Court of Appeals on July 12, 2013, some three months
after Eldridge filed his original § 2255 motion. See
Eldridge's Original Motion
first contention in his original § 2255 motion was that
the Court failed to rule on his counseled Rule 33 motion for
a new trial. As the government points out, however, the Court
did deny that motion by order dated October 5, 2012.
See doc. 165. Accordingly, this contention is moot.
second argument, although it is styled as a habeas petition,
requests relief in the form of a new trial due to alleged
newly discovered evidence. This motion is governed by the
three-year statute of limitations set forth in Rule 33(b)(1),
which provides that “[a]ny motion for a new trial
grounded on newly discovered evidence must be filed within 3
years after the verdict or finding of guilty.”
Eldridge's verdict was delivered on May 4, 2009, more
than three years prior to the filing of his motion.
Accordingly, the motion is time-barred. See, e.g., United
States v. Kearney, 682 F.2d 214, 218 (D.C. Cir. 1982)
(finding that defendant's § 2255 motion filed 12
years after conviction was essentially a motion for a new
trial based on newly discovered evidence and therefore
untimely under rule 33). In any event, Eldridge has failed to
show that he exercised due diligence with regard to the
discovery of any purported new evidence. See
Herrera-Gomez v. United States, 755 F.3d 142, 148
(2d Cir. 2014) (“To the extent Petitioner purports to
rely on ‘new evidence' within the meaning of §
2255(h), he has failed to demonstrate that he exercised due
diligence in his search for that evidence and its submission
to this Court.”).
Eldridge's Amended Motion
§ 2255 purposes, Eldridge's judgment of conviction
became final on October 10, 2013, when the time expired for
him to file a petition for certiorari to the Supreme Court.
See Ozsusamlar v. United States, 2013 WL 4623648, *3
(S.D.N.Y. Aug. 29, 2013) (“For the purposes of §
2255, ‘a judgment of conviction becomes final when the
time expires for filing a petition for certiorari contesting
the appellate court's affirmation of the conviction,
' ninety days after the Court of Appeals'
determination.”). Eldridge's amended motion was
filed on December 11, 2015, and is therefore untimely as it
was filed more than one year after his judgment of conviction
became final. See 28 U.S.C. § 2255(f)(1). The amended
motion raises three new claims, none of which relate back to
Eldridge's original petition. See Thristino v. United
States, 379 F.Supp.2d 510, 518 (S.D.N.Y. 2005) (holding
that amended petition did not relate back where it
“[did] not raise issues that arose out of the same
facts as the claims in the [o]riginal [p]etition”).
Therefore, the amended petition is dismissed.