United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
L. Russell, III United States District Judge
before the Court is Petitioner Moadian Elam Bratton-Bey's
Motion under 28 U.S.C. § 2255 (2012) to Vacate, Set
Aside, or Correct Sentence (ECF No. 828). The Government
opposes the Motion (ECF No. 839). On March 9, 2015,
Bratton-Bey filed a Motion for Extension of Time to File a
Reply Brief (ECF No. 849). The Court granted
Bratton-Bey's Motion on the same day and allowed
Bratton-Bey to file his Reply on or before April 30, 2015
(ECF No. 850). To date, however, the Court has no record that
Bratton-Bey filed a reply. No hearing is necessary.
See 28 U.S.C. § 2255(b). Because
Bratton-Bey's Petition is untimely, the Court will deny
is a one-year period of limitation for filing habeas
petitions. See 28 U.S.C. § 2255(f). The on-year
period begins to run from the latest of:
(1) [T]he date on which the judgment of conviction becomes
(2) [T]he 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
Id. When a defendant's conviction is affirmed on
direct appeal, and he does not file a petition for writ of
certiorari from the United States Supreme Court, the judgment
becomes “final” for the purpose of the one-year
limitation period when the time for filing a petition for
writ of certiorari expires. See Clay v. United
States, 537 U.S. 522, 532 (2003). The procedural rules
of the Supreme Court provide that a party must file a
petition for writ of certiorari within 90 days after a United
States Circuit Court of Appeals enters the judgment.
See S.Ct. Rule 13.
April 12, 2012, Bratton-Bey plead guilty without a plea
agreement to one count each of bank fraud conspiracy (in
violation of 18 U.S.C. § 1349), access device fraud (in
violation of 18 U.S.C. § 1029), and aggravated identity
theft (in violation of 18 U.S.C. § 1028(A)). (ECF No.
445). On August 1, 2013, the United States Court of Appeals
for the Fourth Circuit affirmed Bratton-Bey's conviction.
United States v. Bratton-Bey, 537 F.App'x 165,
166 (4th Cir. 2013) (unpublished per curiam opinion).
Bratton-Bey's conviction became “final” for
purposes of § 2255(f) on October 30, 2013-90 days after
August 1, 2013. As a result, the one-year statute of
limitations for the filing of the instant petition expired on
October 30, 2014. Bratton-Bey certified that he mailed the
petition on October 31, 2014-one day after the limitations
period expired. The Court concludes, therefore, that the
Petition is untimely and must be denied.
to Rule 11(a) of the Rules Governing Proceedings Under 28
U.S.C. § 2255, the Court is required to issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant. A certificate of appealability is a
jurisdictional prerequisite to an appeal from the court's
earlier order. United States v. Hadden, 475 F.3d
652, 659 (4th Cir. 2007). A certificate of appealability may
issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Where a motion is denied on a
procedural ground, a certificate of appealability will not
issue unless the petitioner can demonstrate both “(1)
‘that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right;' and (2) ‘that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.'” Rose v.
Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Bratton-Bey does not satisfy this standard. Accordingly, a
certificate of appealability will not issue.
foregoing reasons, Bratton-Bey's Motion to Vacate (ECF
No. 828) and Motion to Appoint Counsel (ECF No. 835) are
DENIED. The Government is also directed to file a response to
Bratton-Bey's Second Motion for Return of Property (ECF
No. 827) within five days of this date of this Order.
 Also pending before the Court is
Bratton-Bey's Motion to Appoint Counsel (ECF No. 835). A
federal district court judge's power to appoint counsel
under 28 U.S.C. § 1915(e)(1) is a discretionary one, and
may be considered where an indigent claimant presents
exceptional circumstances. See Cook v. Bounds, 518
F.2d 779 (4th Cir. 1975); Branch v. Cole, 686 F.2d
264 (5th Cir. 1982). The question of whether such
circumstances exist in a particular case hinges on the
characteristics of the claim and the litigant. See
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984),
abrogated on other grounds by Mallard v. U.S. Dist. Court
for S. Dist. of Iowa, 490 U.S. 296 (1989). Where a
colorable claim exists but the litigant has no capacity to
present it, counsel should be appointed. Id. Upon
careful consideration of Bratton-Bey's previous filings
in this case, the Court finds that he has demonstrated the
wherewithal to either articulate the legal and factual basis
of his claims himself or secure meaningful assistance in
doing so. Moreover, the issues pending ...