The opinion of the court was delivered by: Hon. Jerome B. Simandle
Petitioner Chang Shan Liu, on August 11, 2011, filed the present petition to set vacate, set aside or correct his sentence of 135 months' imprisonment imposed by this Court imposed on July 31, 2007 in United States v. Hsu et al., No. 05-00355 (D.N.J. filed May 10, 2005). The United States has moved to dismiss Petitioner's § 2255 motion due to untimeliness. [Docket Item 9]. This Court finds as follows:
1. On July 31, 2007, this Court imposed a sentence of 135 months' imprisonment on Petitioner. Hsu, No. 05-00355. On August 9, 2007, Petitioner filed a Notice of Appeal. Id. On December 3, 2008, "[b]ecause [Petitioner] executed a valid appellate waiver, [the Third Circuit] decline[d] to exercise . . . jurisdiction to hear [his] appeal," and "affirm[ed] the District Court's judgment in all respects." United States v. Chang Shan Liu, 317 F. App'x 166, 167, 169 (3d Cir. 2008).
2. On July 28, 2011, Petitioner sent a letter to this Court requesting an extension to file a § 2255 petition. Hsu, No. 05-00355, Docket Item 226. On August 11, 2011, Petitioner filed the instant petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, asserting ineffective counsel and forgery of his signature. [Docket Item 1]. Additionally, Petitioner argues that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") one-year statute of limitations to file a request for relief under § 2255 should be tolled.
3. The AEDPA places strict limitations on habeas petitions, providing a prisoner with just one year to file a request for relief under § 2255. Smith v. United States, Civ. No. 07-3478, 2007 WL 2212715, at *2 (D.N.J. July 25, 2007). Section 2255 provides that the one-year limitations period runs 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 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.
28 U.S.C. § 2255. Petitioner has not alleged that governmental action prevented his motion, that a right has been newly recognized by the Supreme Court, or that later facts were discovered supporting his claim. Therefore, the one-year limitations period began to run from the date on which the judgment of conviction became "final."
4. Section 2255 does not define what makes a conviction "final," but several courts in the Third Circuit have addressed the issue, holding that a conviction becomes final either 1) when time runs out to appeal after a sentencing (previously ten business days), or if the petitioner does appeal, 2) when time runs out to seek a writ of certiorari (ninety days after decision by appellate court). See Kapral v. United States, 166 F.3d 565, 576 (3d Cir. 1999); Smith, 2007 WL 2212715, at *3; Dietsch v. United States, 2 F.Supp. 2d 627, 635-36 (D.N.J. 1998). Here, the Third Circuit declined to exercise jurisdiction to hear Petitioner's appeal and affirmed the District Court's judgment on December 3, 2008. See Liu, 317 F. App'x at 167, 169. Thus, Petitioner's judgment of conviction became final on March 2, 2009, the day his time to file a petition for a writ of certiorari expired. Consequently, the last day for Petitioner to timely file his § 2255 motion was March 2, 2010. Petitioner's § 2255 motion is dated August 4, 2011 and was filed August 11, 2011. Therefore, the Petitioner's § 2255 motion is untimely and beyond the one-year statute of limitations.
5. Petitioner argues, though, that the limitations period should be tolled because he was never notified that his appeal had been denied and that he "was prevented from having access to his legal files" because he was "kept in the dark by [his] former defense attorney." Petition at 1; Response to Mot. at 1. "A litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Dietsch, 2 F.Supp. 2d at 635 (noting that courts have held that the limitations period may be tolled if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time"). Equitable tolling is a remedy which should be invoked "only sparingly." United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998); see also Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (holding that "a statute of limitations should be tolled only in the rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice").
6. Petitioner asserts that his former attorney failed to inform him that his appeal was denied and failed to supply him with his legal files. The Third Circuit, however, has held that "attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the 'extraordinary' circumstances required for equitable tolling." Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001); see also Jackson v. Astrue, 506 F.3d 1349, 1355 (11th Cir. 2007) (noting that equitable tolling is not available if the untimeliness is a ...