United States District Court, D. Maryland
LINDA ALLEN CORDELL, #43159-037 Formerly known as LARRY CORDELL
UNITED STATES OF AMERICA Respondent.
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
Allen Cordell (''Cordell"), formerly known as
Larry Cordell,  pled guilty to one count of the sexual
exploitation of a minor for the purpose of producing child
pornography, in violation of 18 U.S.C. § 2251(a). On May
28, 2008, Cordell was sentenced to 300 months imprisonment
and a lifetime period of supervised release. Criminal
judgment was entered on June 3, 2008. See United States v.
Cordell, Criminal No. RDB-07-0478 (D. Md.) at ECF No.
26. No appeal was noted.
October 22, 2008, Cordell filed a Motion to Vacate pursuant
to 28 U.S.C. § 2255, dated October 16, 2008, raising
Sixth Amendment ineffective assistance of counsel grounds to
her conviction. Id. at ECF No.41. The Motion was
subsequently amended to raise additional ineffective
assistance claims. Id. at ECF No. 43. Cordell's
request to withdraw the Motion without prejudice was granted
on October 19, 2009. Id. at ECF No. 50.
February 3, 2017, the Clerk entered on the docket
Cordell's self-represented 28 U.S.C. § 2255 Motion
to Vacate, raising several grounds relating to the validity
of her 300-month sentence. The Motion was originally received
for filing on October 6, 2016, and is dated October 3, 2016.
See United States v. Cordell, Criminal No.
RDB-07-0478 (D. Md.) at ECF No. 108. On February 16,
2017, the Government was ordered to file a limited answer as
to the timeliness of the Motion. The matter has been briefed
by the parties. ECF Nos. 117 & 127.
noted, Cordell did not file an appeal. Affording her
sentencing the most generous construction, her conviction
became final on June 6, 2008. The one-year statute of
limitations set out under 28 U.S.C. § 2255(1)(1) began
to run on that date. See United States v. Sanders,
247 F.3d 139, 142 (4th Cir. 200I) (where no appeal taken,
statute of limitations begins to run on date the court
entered the judgment of conviction.. Therefore, Cordell had
until June 6, 2009, to file a timely Motion to Vacate and did
not do so.
one-year limitation period may be forgiven if a petitioner
shows that "1) extraordinary circumstances, 2) beyond
h[er] control or external to h[er] own conduct, 3)...
prevented h[er] from tiling on time." United States
v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (citing
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003)
(en banc)). A petitioner must show some wrongful
conduct by a respondent contributed to the delay in filing,
or that circumstances beyond her control caused the delay.
See Rouse, 339 F.3d at 246. [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." Harris
v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2006).
Generally, the petitioner must show that she has been
diligently pursuing her rights and some extraordinary
circumstance prevented her from filing a timely petition.
See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
Rouse, 339 F.3d at 246.
Reply, Cordell seemingly asserts that on September 13, 2016,
she filed a motion with the United States Court of Appeals
for the Fourth Circuit seeking authorization to file a second
or successive § 2255 motion and was given
"authorization '' to do so. See United
States v. Cordell, Criminal No. RDB-07-0478 (D. Md.) at
ECF No. 127. She believes that her Motion is timely "due
to the fact that I was granted authorization by [three]
judges from the United States Court of Appeals ...to file my
second or successive 2255 motion in the District Court"
Court finds Cordell's argument unavailing. Cordell's
28 U.S.C. § 2244(b) Motion, seeking authorization to
file a second or successive § 2255, was not granted by
the Fourth Circuit. The appellate court denied Cordell's
motion as unnecessary given the fact that her first §
2255 Motion was voluntarily withdrawn and dismissed without
prejudice. Further, the Fourth Circuit "expressed] no
opinion as to the timeliness or merit of any § 2255
motion Cordell may file in the district court." See
United Slates v. Cordell, Criminal No. RDB-07-0478 (D.
Md.) at ECF No. 117-1: see also In re: Larry Cordell
CA No. 16-3070 (4th Cir. 2016). The current § 2255
Motion, filed more than eight years after Cordell's
conviction became final, is untimely.
addition to the above analysis, a Certificate of
Appealability must be considered. Unless a Certificate of
Appealability (''COA") is issued, a petitioner
may not appeal the district court's decision in a §
2255 proceeding. 28 U.S.C. § 2253(c)(1); Fed. R. App. P.
22(b). A COA may issue only if the petitioner 'has made a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). The petitioner
"must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong, " Tennard v. Dretke, 542
U.S. 274, 282 (2004) (citation and internal quotation marks
omitted), or that "'the issues presented are
adequate to deserve encouragement to proceed
further, " Miller-El v. Cockrell, 537 U.S., 327
(2003); see also see also Buck v. Davis, ___U.S.
___, 137 S.Ct. 759, 773-74 (2017). Cordell does not satisfy
this standard, and the Court declines to issue a Certificate
of Appealability. The Motion to Vacate shall be dismissed. A
separate Order follows.
On October 19, 2016, the Court ordered
that Defendant's name change request be granted and that
his committed name be changed from Larry Allen Cordell to
Linda Allen Cordell. See United States v Cordell,
Criminal No. RDB-07-0478 (D. Md.) at ECF Nos. 91-92.
Defendant will therefore be referred to in the feminine
pronoun in this Opinion.
The judgment was amended on June 6,
2008. See United States v. Cordell, Criminal No.
RDB-07-0478 (D. ...