United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
are Cleveland Kilgore's Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. §2255,
"Motion for Leave to Request an Expedited Emergency Stay
Order pending Habeas Corpus Adjudication, " and
"Motion for Leave to Request an Expedited Emergency Bail
Hearing, " filed on June 6, 2016 (ECF 104, 105, 106).
For reasons to follow, this Court will DISMISS the Motion to
Vacate as untimely and will decline to issue a Certificate of
Appealability. The "Motion for Leave to Request an
Expedited Emergency Stay Order pending Habeas Corpus
Adjudication" will be DISMISSED AS MOOT and the
"Motion for Leave to Request an Expedited Emergency Bail
Hearing " will be DENIED.
was convicted by a jury of bank fraud, aggravated identity
theft, and aiding and abetting in U.S. v. Cleveland
Kilgore, Criminal No. 06-0115 (D. Md.). On December 19,
2006, this Court sentenced Kilgore to 149 months
incarceration to be followed by five (5) years of supervised
release and ordered him to pay restitution. On November 15,
2007, the United States Court of Appeals for the Fourth
Circuit affirmed judgment on appeal. See United States v.
Kilgore, CA4 07-4025. Kilgore did not file a Petition
for Writ of Certiorari in the Supreme Court. (ECF 104 at 2).
filed a Petition for Writ of Error Coram Nobis in this Court
on September 11, 2007. (ECF 59). This Court denied the
Petition on October 17, 2007, and the United States Court of
Appeals for the Fourth Circuit affirmed the decision on
appeal. U.S. v. Kilgore, Civil No. RDB-07-4025, 2007
WL 4022840 (November 15, 2007).
March 28, 2011, Kilgore submitted a filing captioned as a
Petition for Relief pursuant to "Rule 60(d)(1)(3)"
to set aside judgment for fraud perpetuated on the court.
Kilgore v U.S., Civil No. RDB-10-3502, 2011 WL
846982 (March 5, 2011). Consonant with Castro v. United
States, 540 U.S. 375, 381-82 (2003), this Court notified
Kilgore of its intention to construe the pleading as a Motion
to Vacate under 28 U.S.C. § 2255, and granted him
twenty-eight days to inform the Court whether he wanted to
withdraw or amend the Motion or proceed with it as filed. ECF
90. Noting the § 2255 motion was likely untimely, this
Court instructed Kilgore to provide his reasons why
principles of equitable tolling applied or the Motion was
otherwise timely. Id. Although Kilgore was to be
granted additional time to comply with case precedent, the
Court observed the claim asserted in the filing,
i.e. that this district court lacked subject matter
jurisdiction to adjudicate his criminal proceeding, was
frivolous. Id. Kilgore did not comply with the Order
within the requisite time period, and the Motion was
dismissed without prejudice on April 12, 2011.
Kilgore, Civil No. RDB-10-3502, 2011 WL 846982; ECF
No. 96. Kilgore did not appeal the decision.
who calls himself "Ambassador-Cleveland Winston Kilgore,
Jr., " claims that he is detained in violation of
international law. (ECF 104 at 15, ECF 104-1). Kilgore also
claims the prosecutors in his case conspired with his defense
counsel and, as a result, he is incarcerated due to
prosecutorial fraud and deceit. ECF 104. Further, he alleges
the Secret Service agents who arrested him lacked probable
cause, and the federal prosecutor conspired with Pennsylvania
state prosecutors to transport him to the District of
Maryland with the assistance of the Federal Public
Defender's Office. Notably, these claims are generally
stated without supporting facts.
to Vacate Sentence are subject to a one year statute of
limitations which runs from the latest of several possible
dates: the date on which the petitioner's conviction
becomes final; the date on which an impediment to making his
motion is removed; the date on which the Supreme Court first
recognizes the claims raised where a claim is based on a
newly recognized right made retroactive to cases on
collateral review; or the date on which the facts supporting
the claim first could have been discovered through due
diligence. 28 U.S.C. § 2255(f)(1)-(4). As Kilgore's
claims are not based on evidence that the facts supporting
his claim were not discoverable, an impediment to filing the
motion was removed, or a newly recognized right was made
retroactive to cases on collateral review, the appropriate
date for running the limitations period is the date
Kilgore's conviction became final.
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); United States v. Sosa, 364 F.3d
507, 509 (4th Cir. 2004). As discussed, Kilgore's
judgment of conviction was affirmed on November 15, 2007.
Therefore, his judgment of conviction became final on
February 15, 2008, when the 90-day period for filing a
petition for writ of certiorari with the Supreme Court
expired. See Sup. Ct. R. 13.1 (requiring petition
for writ of certiorari to be filed within ninety days of date
of judgment from which review is sought). Kilgore filed the
Motion to Vacate on June 6, 2016, more than eight years after
the limitations period ended.
Motion, Kilgore cites McQuiggen v. Perkins, __ U.S.
__, 133 S.Ct. 1924, 1928 (2013) (holding there is a
miscarriage of justice exception to excuse an otherwise
untimely habeas petition), although he does not assert that
he is actually innocent of the offenses for which he was
convicted. To assert a claim of actual innocence, a
petitioner must demonstrate that, in light of newly
discovered evidence, it is more likely than not that "no
juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt." Id. at 1928.
Kilgore, however, asserts no grounds to demonstrate his
innocence. Moreover, Kilgore provides no explanation why he
waited for three years to file for collateral relief after
McQuiggen was decided. 28 U.S.C.§ 2255(f)(3)
(running the limitations period from 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