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United States v. Mallett

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 29, 2008

UNITED STATES OF AMERICA, RESPONDENT,
v.
DAWANE ARTHUR MALLETT, MOVANT.

FINDINGS AND RECOMMENDATIONS

Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant challenges his 2003 conviction on multiple federal criminal charges and the sentence imposed thereon. This matter is before the court on respondent's motion to dismiss the action as barred by the statute of limitations contained in 28 U.S.C. § 2255.*fn1

Section 2255 provides in relevant part that a one year statute of limitations applies to § 2255 motions. The limitations period runs "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.

28 U.S.C. § 2255.

It appears from review of the motion that the limitations period began to run against movant when his judgment of conviction became final.*fn2

The Supreme Court has held that a conviction is final in the context of habeas review when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

U.S. v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001). Movant's direct appeal was denied on December 1, 2006.*fn3 Movant had ninety days thereafter to file a petition for writ of certiorari in the United States Supreme Court. Id. at 1223 n.2. Thus, the statute of limitations began to run against movant on or about March 3, 2007. As a general rule, documents filed by pro se prisoners are deemed filed on the day they are delivered to prison officials for mailing to the court. See Houston v. Lack, 487 U.S. 266, 270-72, 275 (1988). There is no evidence in the record conclusively demonstrating when the motion was delivered to prison officials for mailing to the court. Movant signed his motion on March 27, 2008, approximately twenty-four days after the statute of limitations expired, and the motion was filed in this court on April 3, 2008, thirty-one days after expiration of the limitation period. The former date represents the earliest possible date on which movant's § 2255 motion could be deemed filed. Assuming arguendo that is the proper filing date, the motion is nonetheless untimely and must be dismissed.

Accordingly IT IS HEREBY RECOMMENDED that:

1. Respondent's June 16, 2008 motion to dismiss be granted;

2. Movant's § 2255 motion be dismissed as barred by the statute of limitations; and

3. The Clerk of the Court be directed to close the companion civil case No. 2:08-cv-0707 GEB JFM (HC).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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