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United States v. Habibian

February 8, 2010

UNITED STATES OF AMERICA, RESPONDENT,
v.
HOSSEIN HABIBIAN, MOVANT.



FINDINGS AND RECOMMENDATIONS

Movant is a former federal prisoner who has filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. He alleges that his guilty plea was not voluntary because of his chronic depression; that the plea was coerced by the government's promise to dismiss charges against movant's wife as part of his plea agreement; that counsel was ineffective because he did not inquire whether movant wanted to appeal his sentence; that his arrest was illegal because he was not read his rights; that counsel did not investigate the case and pressured petitioner into accepting a detrimental plea agreement; and that he was investigated for the crime only because of his nationality.

Respondent has opposed the motion on the grounds that it is untimely and the issues are defaulted. Respondent also argues that the claims have no substantive merit.

I. Procedural Background

On November 19, 2003, movant was indicted on one count of conspiracy to commit mail fraud and thirteen counts of mail fraud. Docket No. 1. On January 23, 2004, he entered a plea of guilty to the conspiracy charge on the understanding that the charges against his wife and the remaining charges against him would be dismissed, among other things. Movant also agreed to waive appeal and collateral attack. Docket No. 23 (plea agreement). On June 18, 2004, movant was sentenced to a sixty-month term of probation.*fn1 Judgment was entered on July 2, 2004. Movant did not appeal his conviction. The instant motion to vacate was filed on October 9, 2007.

II. The Statute Of Limitations

Section 2255 provides in part: A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run 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 (f).

When a defendant does not appeal his conviction, the statute of limitations begins running at the expiration of the time to file the notice of appeal, which, at the time of defendant's conviction, was ten days from the entry of judgment.*fn2 United States v. Sanchez-Castellanos, 358 F.3d 424, 426 (6th Cir. 2004); United States v. Cottage, 307 F.3d 494, 499 n.4 (6th Cir. 2002). In this case, the time for filing the direct appeal expired on July 19, 2004. See United States v. Nonahal, 338 F.3d 668 (7th Cir. 2003) (period to file notice of appeal is 10 days, excluding weekends and holidays); Fed. R. App.P. 4(b)(1)(A)(i) & 26(a)(2) (2004). Accordingly, the statute of limitations began to run on July 20, 2004 and expired on July 20, 2005. The instant motion filed in October 2007 is not timely.

Movant avers that he did not file his motion earlier because of a combination of major depression, bipolar disorder and ADHD, and that he has only recently received "proper psychiatric medical attention with the appropriate medication (Risperidone, Zoloft, etc.)," which enabled him to function "with a clear stable thinking mind."

The Ninth Circuit has held:

We will permit equitable tolling of AEDPA's limitations period only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time. When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely ...


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