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Key v. United States

United States District Court, Fourth Circuit

August 20, 2013

UNITED STATES OF AMERICA Respondent. Civil No. ELH-12-3472



James Edward Key, petitioner, filed a motion pursuant to 28 U.S.C. §2255. ECF 141. Respondent filed an answer asserting, inter alia, that the motion is time-barred. ECF 147. Petitioner has filed a traverse claiming entitlement to equitable tolling of the statute of limitations. ECF 157. For the reasons stated below, the motion must be dismissed as untimely.


On November 30, 1994, a jury in the United States District Court for the District of Maryland convicted petitioner of the robbery of three banks, and the use of firearms in the commission of those crimes. See ECF 141 at 2. He was sentenced to 600 months in prison. Id. Key appealed his conviction to the United States Court of Appeals for the Fourth Circuit, which affirmed on June 20, 1996. See United States v. Roseboro and Key, 87 F.3d 642 (4th Cir. 1996). Key then filed a petition for writ of certiorari with the United States Supreme Court, which was denied on January 6, 1997. See Roseboro v. United States, 519 U.S. 1060 (1997).

The instant motion to vacate was filed on November 27, 2012, pursuant to 28 U.S.C. § 2255. ECF 141. Key alleges that the "courts did not have the statutory or constitutional power to do, what it did." Id. at 5. Further, he asserts that this jurisdictional defect is not subject to the one-year filing limitation ordinarily applicable to motions under § 2255. Id. [1]

This court issued a limited order to show cause, directing counsel for respondent to address only the matters of successiveness and timeliness of the instant motion. ECF 142. Following the response to show cause (ECF 147), this court issued an order advising Key that the motion to vacate was alleged to be untimely and would be dismissed unless he could establish that he was entitled to the benefit of an exception to the filing limitation, including equitable tolling. ECF 148. Key responded. ECF 149, 151, 156, 157. Accordingly, this court must consider the timeliness of the motion under 28 U.S.C. § 2255.

Standard of Review

Pursuant to 28 U.S.C. § 2255(f), a one-year period of limitation applies to a motion under this section. Under the provisions of 28 U.S.C. § 2255(f), the limitation period of one year 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.

Notably, however, "the one year limitation period is also subject to equitable tolling in those rare instances where - due to circumstances external to the party's own conduct - it would be unconscionable to enforce the limitation against the party.'" Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) ( citing Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). But, to be entitled to equitable tolling, Key must establish either that some wrongful conduct by respondent contributed to his delay in filing his motion to vacate, or that circumstances beyond his control caused the delay. See Harris, 209 F.3d at 330. "[A]ny resort to equity must be reserved for those rare instances where... it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Id.

In his traverse, Key has not alleged any basis for equitable tolling of the filing deadline. Rather, he asserts that the Fourth Circuit's decision stating that an order authorizing consideration of a successive motion was unnecessary was also dispositive of the timeliness issue. Key is mistaken. Absent authorization from the appropriate Court of Appeals, a District Court does not have jurisdiction to consider a successive motion. But, such authorization is not required in the case of a motion that is filed outside of the one-year limitation period. This court has jurisdiction to determine if a motion to ...

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