United States District Court, D. Maryland
Richard D. Bennett United States District Judge
pro se Petitioner Wayne Brooks
("Petitioner" or "Brooks") pled guilty
before this Court to Possession with Intent to Distribute
Cocaine, 28 Grams or more of Cocaine Base, and Heroin, in
violation of 21 U.S.C. § 841. (ECF No. 18.) On July 13,
2015, this Court sentenced Petitioner to one hundred and
thirteen (113) months of imprisonment, pursuant to Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure. (ECF
No. 28.) Presently before this Court is Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255 (ECF No. 40). For the following reasons,
Petitioner's Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255 (ECF No. 40) is DENIED.
April 14, 2015, Brooks pled guilty to Possession with Intent
to Distribute Cocaine, 28 Grams or more of Cocaine Base, and
Heroin, in violation of 21 U.S.C. § 841. (ECF Nos. 18,
19.) The plea agreement included a Rule 11(c)(1)(C) provision
whereby Petitioner and the Government agreed that one hundred
and thirteen (113) months of imprisonment was appropriate.
(ECF No. 19.) Subsequently on July 13, 2015, this Court
sentenced Brooks to 113 months of imprisonment. (ECF No. 28.)
Brooks did not appeal his conviction or sentence. Over a year
later, on August 29, 2016, Brooks filed the present Motion to
vacate under 28 U.S.C. § 2255. (ECF No. 40.) On January
30, 2018, the Government responded, arguing that the Motion
to Vacate should be denied because it is
time-barred. (ECF No. 44.)
Court recognizes that Petitioner is pro se and has
accorded his pleadings liberal construction. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C.
§ 2255, a prisoner in custody may seek to vacate, set
aside, or correct his sentence on four grounds: (1) the
sentence was imposed in violation of the Constitution or laws
of the United States, (2) the court was without jurisdiction
to impose the sentence, (3) the sentence was in excess of the
maximum authorized by law, or (4) the sentence is otherwise
subject to a collateral attack. Hili v. United
States, 368 U.S. 424 (1962) (citing 28 U.S.C. §
2255). Further, "an error of law does not provide a
basis for collateral attack unless the claimed error
constituted 'a fundamental defect which
inherently results in a complete miscarriage of
justice.'" United States v.
Addonizio, 442 U.S. 178, 185 (1979) (quoting
Hill, 368 U.S. at 428).
Petitioner's Motion is Untimely
Petitioner Did Not File His Motion Within the One-year
Statute of Limitations
one-year statute of limitations applies to § 2255
petitions. 28 U.S.C. § 2255(f). The limitations period
runs from the latest of:
(1) [T]he 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.
Government avers that the one-year limitations period started
to run on the date Brooks' judgment of conviction became
final. (ECF No. 44 at 2-3.) Finality for the purpose of 28
U.S.C. § 2255(f)(1) attaches when the opportunity to
appeal expires. See Clay v. United States, 537 U.S.
522, 524-25 (2003); United States v. Sosa, 364 F.3d
507, 509 (4th Or. 2004). Because Brooks did not file an
appeal, Brooks' conviction became final fourteen days
after entry of judgment, which was filed on July 13, 2015.
See Fed. R. App. P. 4(b)(1)(A) (providing fourteen
days to file an appeal). Under the facts presented,
Brooks' limitations period started to run on July 27,
2015, and expired one year later on July 27, 2016. Brooks did
not file his § 2255 Motion until August 29, 2016,
approximately one month after the one-year limitations period
expired. Accordingly, the Motion is untimely.
Equitable Tolling ...