United States v. Smith

          ORDER

          SUSAN O. HICKEY CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation filed December 29, 2017, by the Honorable Mark E. Ford, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 55). Judge Ford recommends that Petitioner Nicholas Smith's (“Smith”) Motion Seeking a Vacatur, Setting-Aside, Correction of his Sentence Pursuant to Title 28 U.S.C. § 2255 be denied. (ECF No. 49). Smith has filed objections to the Report and Recommendation. (ECF No. 56). The Court finds this matter ripe for consideration.

         BACKGROUND

         On November 16, 2017, Smith filed the instant Motion Seeking a Vacatur, Setting-Aside, Correction of His Sentence Pursuant to Title 28 U.S.C. § 2255. (ECF No. 49). The motion raises two grounds for relief: (1) ineffective assistance of counsel for failing to move for suppression of Smith's statements to law enforcement “while in a postictal state” following a seizure (ECF No. 49, pp. 2-6); and, (2) ineffective assistance of counsel for failing to object to the Court's finding that it must consider the sentence for each count of conviction separately (ECF No. 49, pp. 6-9). Due to a deficiency in Smith's declaration in the motion, the Court ordered Smith on November 17, 2017 to file an amended declaration within 15 days. (ECF No. 53). As of the date of this order, Smith has not filed an amended declaration as ordered by the Court. The United States filed a response to the motion on December 15, 2017. (ECF No. 54). Smith did not file a reply.

         The Court referred Smith's motion to Judge Mark E. Ford, United States Magistrate Judge for the Western District of Arkansas, to make a Report and Recommendation. On December 29, 2017, Judge Ford delivered his Report and Recommendation (ECF No. 55) to the Court, recommending that Smith's Section 2255 motion be denied. On January 19, 2018, Smith filed his Objections to the Report and Recommendation.^[1] (ECF No. 56).

         DISCUSSION

         Judge Ford recommends summary dismissal of Smith's Section 2255 motion because it was not timely filed and properly verified. Judge Ford also recommends that the Court deny Smith's motion, as well as his request for an evidentiary hearing and certificate of appealability, because Smith's ineffective assistance of counsel claims “have either been waived by guilty pleas, lack support in the record, or are otherwise clearly without merit.” (ECF No. 55, p. 22).

         I. Timeliness and Verification

         As a threshold matter, the Court must determine whether Smith's Section 2255 motion is timely and properly verified.

         Motions under 28 U.S.C. § 2255 are subject to a one-year statute of limitations. 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(f).

         An un-appealed criminal judgment becomes final when the time for filing a direct appeal expires. Anjulo-Lopez v. United States, 541 F.3d 814, 816 n.2 (8th Cir. 2008). The Judgment in this case was entered on November 1, 2016. (ECF No. 38). Had Smith wished to file an appeal, he was required to do so within fourteen days. See Fed. R. App. P. 4(b)(1)(A)(i). Smith did not file an appeal, and thus, his conviction became final on November 15, 2016. From that date, Smith had one year, or until November 15, 2017, to timely file his Section 2255 habeas petition. Smith filed his petition on November 16, 2017, one day after the limitations period expired. The petition is dated October 9, 2017 (ECF No. 49, p. 10), but it was not received and filed by the Court of Clerk until November 16, 2017.

         Smith argues that his motion is timely because he is entitled to the benefit of the so-called prison mailbox rule. (ECF 56, p. 2). Rule 3(d) of the Rules Governing Section 2255 Proceedings outlines the prison mailbox rule in habeas proceedings and provides the following:

A paper filed by an inmate confined to an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

         It is Smith's burden to show that the prison mailbox rule is applicable in this case. Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001).

         Further, 28 U.S.C. § 2242 provides that an “[a]pplication for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.” Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings similarly requires that the motion “be signed under penalty of perjury by the movant or by a person authorized to sign it for the movant.” A court may dismiss a petition that has not been signed and verified in compliance with the statutory requirements. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

         Judge Ford recommends summary dismissal because Smith failed to adhere to Rule 3(d) of the Rules Governing Section 2255 Proceedings and attach an affidavit or notarized statement showing that he had deposited his Section 2255 motion in an institutional legal mail system with the required postage. Judge Ford also recommends summary dismissal because Smith's Section 2255 motion was not verified. In his objections, Smith ignores Judge Ford's Rule 3(d) analysis and instead argues that he is entitled to the benefit of the prison mailbox rule because he satisfied the requirements of Fed. R. of App. P. 4(c).^[2] Smith admits that his habeas petition was not properly verified but asks the Court to exercise its discretion and overlook this defect.

         Upon consideration, the Court agrees with Judge Ford that the petition should be dismissed. Smith did not attach an affidavit or notarized statement showing that he had deposited his Section 2255 motion in his institution's legal mail system with the required postage as required by Rule 3(d) of the Rules Governing Section 2255 Proceedings. Smith's argument that he complied with Fed. R. App. P. 4 is simply insufficient to meet the requirements of the prison mailbox rule in habeas proceedings. Smith also did not sign and verify his Section 2255 motion under penalty of perjury. In an effort to allow Smith to cure the deficiencies in his motion, Judge Ford ordered Smith to file an amended declaration, but Smith failed ...