United States District Court, W.D. Arkansas, Hot Springs Division
O. HICKEY CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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. (ECF No. 56).
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).
Timeliness and Verification
threshold matter, the Court must determine whether
Smith's Section 2255 motion is timely and properly
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).
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.
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.
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).
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).
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). Smith admits that his habeas
petition was not properly verified but asks the Court to
exercise its discretion and overlook this defect.
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 ...