United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
This matter is before the Court on Petitioner TaJuan Carvell Brooks' Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. 79). The Government has responded (Doc. 82) by moving for dismissal of the motion as untimely because it was filed outside the applicable statute of limitations. After a careful review of the record and the arguments presented, the Court grants the Government's motion.
Petitioner was found in possession of 24.9 grams of cocaine base, two firearms, and two devices similar to pipe bombs that were not registered with the ATF. Petitioner had two previous drug convictions under Kansas law. Petitioner was charged with one count of possession with intent to distribute cocaine, one count of being a felon in possession of a firearm, one count of being a felon in possession of a destructive device, one count of possession of non-registered firearms, and one count of possession of a firearm in furtherance of a drug trafficking crime. Petitioner's attorney, Cheryl Pilate, filed two motions seeking to dismiss charges (one motion to dismiss the felon in possession of a firearm as the previous convictions were minor drug offenses and one motion to dismiss counts relating to pipe bomb, which had been destroyed). On July 23, 2012, Petitioner entered a guilty plea to the drug, firearms, and explosive devices counts. Petitioner's motions were withdrawn as part of the Plea Agreement. This Court imposed a sentence of 120 month's custody, in accordance with the parties Plea Agreement.
Petitioner filed a direct appeal on November 12, 2012. The Tenth Circuit Court of Appeals granted the Government's motion and dismissed the appeal on the basis that Petitioner waived his right to appeal either his conviction or his sentence in the plea agreement. The Tenth Circuit's analysis also concluded that there was no miscarriage of justice to enforce the waiver of appeal. This decision was filed on March 15, 2013, and the mandate issued April 8, 2013. Petitioner did not file a petition for writ of certiorari with the United States Supreme Court. The instant petition was filed on February 2, 2015. Petitioner alleges that Pilate provided ineffective assistance of counsel by failing to investigate the case and possible defenses.
This petition is governed by 28 U.S.C. § 2255. 28 U.S.C. § 2255(a) states: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released... may move the court which imposed the sentence to vacate, set aside or correct the sentence." An evidentiary hearing must be granted on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." A filing made by a pro se party is to be liberally construed. A court must give weight to an argument advanced by a pro se party even though that argument may not cite legal authority, be well written, or follow standard pleading requirements. However, it is not the role of the court to act as an advocate for a pro se party.
A prisoner has one year in which to file a § 2255 petition after the latest of the following:
(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.
Petitioner has not alleged impediments created by the Government, a newly recognized right created by the Supreme Court, or the existence of new facts. This leaves the date of final judgment as the date used to measure the one-year period. Petitioner's appeal to the Tenth Circuit Court of Appeals was denied on March 15, 2013. A writ of certiorari must be filed with the clerk of the Supreme Court within ninety days after the entry of judgment of an appellate court. Time is measured from the date of judgment and not the date of the mandate. Petitioner's sentence would have become final on June 14, 2013. As such, Petitioner would have needed to file a petition for habeas corpus on or before June 14, ...