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Terry v. United States

June 26, 2006

LOUIS L. TERRY PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT



The opinion of the court was delivered by: James M. Moody United States District Judge

ORDER

On June 25, 2002, the petitioner was found guilty in a jury trial of two counts of the Grand Jury's indictment. On count one, he was found guilty of aiding and abetting a bank robbery by use of a dangerous weapon, a violation of 18 U.S.C. §2113(a) and (d) and 18 U.S.C. §2. On count two, he was found guilty of aiding and abetting the brandishing of a firearm in a crime of violence, a violation of 18 U.S.C. §924(c)(1) and (2). On December 18, 2002, the petitioner was sentenced to a period of 110 months confinement with a period of three years supervised release and $200 assessment. The petitioner is presently imprisoned at the FCI Forrest City, Forrest City, Arkansas.

On January 6, 2003 the petitioner's attorney filed with this Court a motion to extend time to file notice of appeal in order to give him time to discuss the matter with the petitioner. The motion was granted giving the petitioner an additional thirty (30) days to file his notice of appeal.*fn1 Petitioner did not file a timely notice of appeal. Instead, on September 19, 2003, petitioner filed a motion to allow him to file an untimely notice of appeal. The government responded to the motion on January 14, 2004. The motion was denied on January 26, 2004.

On September 17, 2004, Petitioner filed a pro se petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §2255. Subsequently, the Court ordered the public defender to assist the petitioner. An amended and supplemented petition was filed on November 7, 2005.

Petitioner's motion and amended motion argue: (1) that either statutory provisions or the doctrine of equitable tolling permit the Court to decide this case on the merits rather than dismissing it on procedural grounds: (2) the 110-month sentence in this case violates Apprendi, Blakely, Booker and due process: (3) mandatory sentences, such as imposed here, undermine the statutory goal of eliminating sentencing disparities: and (4) the petitioner did not receive effective assistance of counsel because his lawyer did not file a notice of appeal, did not contest the characterization of petitioner's criminal history, and did not provide effective assistance as set forth in petitioner's pro se petition.

On June 22, 2006, the Court held a hearing on Petitioner's motion, heard testimony, received evidence and heard argument of counsel. For the reasons stated on the record and herein, Petitioner's motion is denied.

Statute of Limitations

Before analyzing Petitioner's claims for habeas relief, the Court must address Respondent's threshold argument that this habeas action was filed outside of the applicable statute of limitations. The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") and 28 U.S.C. § 2255 have an explicit one-year statute of limitations. The one-year period of limitations 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.A. § 2255.

Pursuant to this statutory language, the petitioner had one year from the date on which his conviction became final to file his motion. The judgment of conviction becomes final when the time for filing a direct appeal expires. The Court extended the petitioner's deadline for filing an appeal to February 5, 2003. Petitioner did not file a timely notice of appeal, accordingly, the petitioner had up to and including February 5, 2004 in which to file his petition. Petitioner filed his original petition on September 17, 2004, seven months later. Petitioner argues that the one-year period of time did not begin to run until the Court ruled on his motion to file a ...


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