United States District Court, D. Maryland
WILLIAM AUSTIN FLOWERS, JR.
UNITED STATES OF AMERICA Related Crim. No. CCB-06-0222
Catherine C. Blake United States District Judge.
Pending is William Austin Flowers’s (“Flowers”) Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. ECF No. 119. After reviewing the parties’ submissions, the court finds that no hearing is necessary. See Rule 8(a), Rules Governing Section 2255 Cases in the United States District Courts; Local Rule 105.6 (D. Md. 2014). For the reasons stated herein, the motion to vacate, set aside, or correct sentence will be dismissed as time-barred, and a certificate of appealability will not issue.
Flowers pled guilty to one count of Hobbs Act robbery and one count of brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). He was sentenced on March 30, 2007, to 70 months imprisonment for the robbery charge and 84 months imprisonment, to run consecutively, on the 924(c) charge. ECF No. 62. The judgment was signed and docketed on April 12, 2007. Id. Flowers contends that he instructed his attorney to appeal the judgment, but his attorney failed to do so. ECF No. 119 at 9. Flowers did not file a notice of appeal until November 7, 2013. ECF No. 108. His appeal was dismissed as untimely by the United States Court of Appeals for the Fourth Circuit on November 5, 2014. ECF No. 117. He then filed a petition for writ of certiorari to the United States Supreme Court, which was denied on April 20, 2015. ECF No. 119 at 7. Flowers filed the instant motion pursuant to 28 U.S.C. § 2255 on May 21, 2015. Id. at 1.
I. LIMITATIONS PERIOD
Pursuant to 28 U.S.C. § 2255(f), a motion to vacate, set aside, or correct must be filed within one year, running 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.
Flowers asserts that his motion is timely because it was filed within one year of the denial of his writ of certiorari by the United States Supreme Court. See ECF No. 134 at 1. A conviction becomes final for the purpose of starting the one-year limitations period when the opportunity to appeal expires. See Clay v. United States, 537 U.S. 522, 524-25, 532 (2003). In the instant case, judgment was entered on April 12, 2007. Thus, Flowers’s conviction became final for the purposes of § 2255(f)(1) ten days later when his opportunity to appeal expired. See Fed. R. App. P. 4(b)(1)(A)(i). Accordingly, the one year statute of limitations had long expired when Flowers filed his notice of appeal in 2013. Flowers’s untimely appeal and request for certiorari do not revive or extend his opportunity to file a § 2255 motion. See Gillis v. United States, 729 F.3d 641, 644 (6th Cir. 2013) (“A conviction becomes final when the time for direct appeal expires and no appeal has been filed, not when an untimely appeal is dismissed . . . .”). Thus, Flowers’s motion, filed on May 21, 2015, was filed well after his opportunity to appeal had expired, and is therefore untimely.
Flowers’s motion would also be untimely under the other provisions of § 2255(f). Neither § 2255(f)(2) nor (f)(3) is applicable to Flowers’s case because there were not, at any time, impediments created by government action that prevented Flowers from making such a motion, or a Supreme Court decision newly recognizing any relevant rights to be applied retroactively.
Flowers asserts several claims in his § 2255 motion. ECF No. 119 at 9. Specifically, he argues that he was improperly sentenced to 84 months in prison based on facts not proven to the jury; that his counsel failed to advance claims regarding Fourth Amendment violations; and that his counsel provided ineffective assistance regarding pre-trial motions. Id. at 9. Furthermore, Flowers argues that his counsel failed to timely file a notice of appeal. He then asserts that his claims are timely under f(4). For subsection (f)(4) to apply, however, the petitioner must have acted with “due diligence” in discovering facts to support his claim. “[D]iligence can be shown by prompt action on the part of the petitioner as soon as he is in a position to realize that he has an interest in challenging the prior conviction . . . .” Johnson v. United States, 544 U.S. 295, 308 (2005). Here, Flowers has not demonstrated that he acted with due diligence when he waited over six years before filing a notice of appeal, and longer to file the instant motion. Even if he believed his attorney had filed a notice of appeal as requested, waiting six years to inquire further about his appeal ...