The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
Petitioner Juan Cruz pled guilty to conspiracy to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846 and as a result was sentence, by this Court, to a 110 month term of imprisonment with four years supervised release. He now petitions the Court pursuant to 28 U.S.C. § 2255 to vacate or set aside this sentence because his Sixth Amendment rights to effective assistance of counsel and trial by jury were violated.
On February 5, 2003 a federal grand jury returned a one-count indictment charging petitioner with conspiracy to distribute and possess with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846. Petitioner pled guilty to the federal charge on April 22, 2003, and on November 3, 2003, the Court sentenced him and entered a judgment of conviction. He received a sentence of 110 month term of imprisonment with four years supervised release. Petitioner did not appeal his conviction or this sentence but did file pro se motions for miscellaneous relief, which were entertained by this Court on October 20, 2003. These motions included: (1) an objection to the Pre-Sentencing Investigation Report ("PSR"), alleging overstatement of his criminal history; (2) a request for a downward departure based on pre-sentencing conditions; and (3) a request for a downward departure based on the ineffective assistance of counsel.
As an initial matter, this Court must review petitioner's request for relief for timeliness. The Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes a one-year statute of limitations period on habeas petitions filed under §2255:
A 1-year period of limitations shall apply to a motion under this section. The limitation period shall run 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 the 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
28 U.S.C. § 2255. Because petitioner has neither asserted that the Government has impeded the timely filing of his petition nor alleged that there are new facts or legal authority that would support his action, the limitations period for petitioner's motion began to run on the date on which his judgment of conviction became "final."
A "judgment of conviction becomes final within the meaning of § 2255 on the later of 1) the date on which the Supreme Court affirms the conviction and sentence on the merits or denied the defendant's timely filed petition for certiorari; or 2) the date on which the defendant's time for filing a timely petition for certiorari review expires." Kapral v. United States, 166 F. 3d 565,577 (3d Cir. 1999); see also Clay v. United States, 537 U.S. 522, 532 (2003). If a defendant does not pursue a timely direct appeal, the conviction and sentence become final, and the limitation period begins to run on the date on which the time for filing such an appeal expired. Kapral, 166 F.3d at 577.
Petitioner failed to file a timely direct appeal and so his conviction and sentence became final on the date his right to file an appeal expired. Petitioner had 10 days from the entry of the judgment of conviction within which to file a direct appeal, see Fed. R. App. P. 4(b)(1)(A)(I), which was November 3, 1003. Consequently, his judgment of conviction became final within the meaning of § 2255 on March 13, 2003. Pursuant to the limitations provision, petitioner had one year from then ...