Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 vs. 9 10 11 12 13 On September 26, 2006, John Derrick Martin, ("Movant"), presently confined JOHN DERRICK MARTIN , Defendant-Movant. UNITED STATES OF AMERICA Plaintiff-Respondent, ) ) ) ) ) ) ) ) ) ) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

No. CR 02-0155-PHX-JAT CV 06-2302-PHX-JAT (BPV) ORDER

14 in the United States Penitentiary, Coleman, Florida, filed a Motion to Vacate, Set Aside, 15 or Correct Sentence By a Person in Federal Custody pursuant to 28 U.S.C. § 2255 16 ("Motion") (Doc. #316). 17 Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a one

18 year period of limitations from the date on which the judgement of conviction becomes 19 final has been imposed on the filing of motions for collateral relief by prisoners in 20 federal custody. 28 U.S.C. § 2255. The Government concedes the timeliness of the 21 motion. The Magistrate Judge, however, finds that the Government has overlooked 22 controlling United States Supreme Court and Ninth Circuit Court of Appeals precedent 23 in making its timeliness calculation, and exercises its authority under Day v. 24 McDonough, 547 U.S. 198 (2006), after considerations of prejudice and the interests 25 of justice, to raise the issue on its own initiative. 26 For federal criminal defendants who do not file a petition for certiorari with the

27 United States Supreme Court, a judgment of conviction becomes final when the time 28 expires for filing a petition for certiorari contesting the appellate court's affirmation of
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1 conviction. Clay v. United States, 537 U.S. 522, 532 (2003); United States v. Garcia, 2 210 F.3d 1058, 1060 (9th Cir. 2000). The court of appeals affirmed Movant's 3 conviction on November 23, 2004. Although the mandate did not issue until September 4 27, 2005, the time to file a petition for writ of certiorari runs from the date of entry of 5 the judgment or order sought to be reviewed, and not from the issuance date of the 6 mandate. See Sup.Ct. R. 13.3.; See also Garcia, 210 F.3d at 1061, n,6. Movant chose 7 not to file a petition for a writ of certiorari in the United States Supreme Court. His 8 petition for a writ of certiorari would have been due no later than February 21, 2005, 9 90 days after the entry of judgment on direct review. The one year period of limitations 10 which Movant had to file his § 2255 motion began to run upon the expiration of the 11 time to file a petition for certiorari, or one year after February 21, 2005. See Clay, 537 12 U.S. at 532. Movant's motion, filed over a year later, on September 26, 2006, is 13 untimely and subject to dismissal unless relief in the form of equitable tolling is 14 applicable in this case. 15 The Ninth Circuit has confirmed that the doctrine of equitable tolling applies to

16 § 2255 cases. United States v. Battles, 362 F.3d 1195 (9th Cir. 2004). Equitable tolling 17 may be available even after the statute of limitations period has expired if 18 "extraordinary circumstances beyond a prisoner's control make it impossible to file a 19 petition on time." Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288 20 (9th Cir. 1997), overruled on other grounds Calderon v. United States Dist. Ct., 163 21 F.3d 530 (9th Cir. 1998)(en banc). The Ninth Circuit has noted that determinations of 22 "whether there are grounds for equitable tolling are highly fact dependent." 23 Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000)(en banc). 24 Equitable tolling is appropriate only if extraordinary circumstances beyond a

25 prisoner's control make it impossible to file a petition on time, and is unavailable in 26 most cases. Miranda v. Castro 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting Miles v. 27 Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) and Beeler, 128 F.3d at 1288). The 28
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1 threshold necessary to trigger equitable tolling under the AEDPA is very high. 2 Miranda, 292 F.3d at 1066 (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th 3 Cir. 2000)). 4 While this court may raise sua sponte the affirmative defense of failure to

5 comply with the statute of limitation, the court must provide the movant with notice and 6 an opportunity to be heard before recommending dismissal on such ground. Day v. 7 McDonough, 547 U.S. 198 (2006). Accordingly: 8 IT IS ORDERED that Movant is hereby ORDERED TO SHOW CAUSE why

9 this case should not be DISMISSED as untimely, pursuant to 28 U.S.C. §§ 2255, by 10 filing a writing with this Court within 30 days of the filing date of this order. 11 IT IS FURTHER ORDERED that if Movant submits a document in response

12 to this order to show cause, the Respondent may submit a response in writing, within 13 10 days of service of the response on Respondent. 14 IT IS FURTHER ORDERED that this case will be dismissed, without further

15 notice, should Plaintiff fail to timely comply with this Order. 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:02-cr-00155-JAT

DATED this 13th day of June, 2008.

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