United States District Court, D. Maryland
PETER J. MESSITTE, District Judge.
Alexander Martin. Jr., proceeding pro se, has filed a Motion to Vacate Conviction under 28 U.S.C. § 2255. ECF No. 119. Having considered the Motion and the Government's Opposition, although the Court is prepared to find all the claims Martin raises to be meritless, it will DEFER final ruling on the Motion and allow Martin sixty (60) days to show cause why equitable tolling might apply to his claim of ineffective assistance of counsel based on counsel's purported failure to follow Martin's request to file an appeal.
On April 16, 2003, Martin pleaded guilty to one count of kidnapping in violation of 18 U.S.C § 1201 and one count of using a firearm during the commission of a crime of violence in violation of 18 U.S.C § 924(c). On May 29, 2003, the Court sentenced him to 290 months incarceration on Count I and seven-years consecutive incarceration on Count II. Judgment was entered on June 2, 2003.
Martin's opportunity to file a direct appeal expired fourteen days following entry of judgment. Fed. R. Appr. P. 4(b)(1)(A)(i), but he did not do so. He submitted the present § 2255 motion to vacate on February 18, 2014. ECF No. 119. The Government filed a response to the motion, to which Martin did not reply.
Construing his § 2255 motion liberally, Martin argues (1) that the Supreme Court's decisions in Descamps v. United States, 133 S.Ct. 2276 (2013), Alleyne v. United Slates, 133 S.Ct. 2151 (2013), and Blakely v. United States, 542 U.S. 296 (2004) recognized new rights that entitle him to be resentenced; and (2) that his Sixth Amendment rights were violated by reason of ineffective assistance of counsel, entitling him to be resentenced. In particular, Martin argues that he was prejudiced by his counsel's failure to file a direct appeal on Blakely grounds, that he was left to enter his plea unknowingly or involuntarily, and that counsel tailed to file a direct appeal even though Martin requested that he do so. The Court addresses each argument in turn.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28 U.S.C. § 2255, established a one-year statute of limitations for filing post-conviction claims in federal court. Specifically, petitions filed under § 2255 must be filed within one year of the latest of the following events:
(1) the date on which the conviction becomes final;
(2) the date on which an impediment created by government action in violation of the Constitution or laws of the United States is removed;
(3) the date on which the right was recognized by the Supreme Court and made retroactively applicable; or
(4) the date on which the facts that support the claim presented could have been discovered through the exercise of diligence.
See 28 U.S.C. § 2255(f). There are, however, exceptions to the time bar, as well as grounds for tolling the statute of limitations. In order to qualify for an exception, a defendant must show that he has pursued his claim diligently and that an extraordinary circumstance or circumstances prevented him from filing it on time. See United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004).
Martin's conviction became final on June 16, 2003, when the opportunity to appeal this Court's judgment expired. Again, Martin did not file this Motion to Vacate until February 18, 2014. He has not alleged any impediment created by the ...