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United States v. Figueroa

United States District Court, D. New Jersey

November 8, 2018

Miguel FIGUEROA, Defendant.

          OPINION & ORDER

          KEVIN MCNULTY, U.S.D.J.

         This matter comes before the court on the motion of the defendant, Miguel Figueroa, for an extension of the one-year deadline to file his motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. For the reasons stated herein, I find that the § 2255 motion was filed timely. In response to my order that the government state its legal position as to the issue of timeliness in this pro se case, I received what amounted to a back-of-the-hand. To be clear, I do not suggest that the circumstances suggest anything beyond onetime carelessness, but I will expect better in the future.

         Mr. Figueroa was indicted on a single count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). On January 12, 2016, the defendant waived a jury trial and the court adjudged him guilty on stipulated facts. (DE 29, 30) The purpose of that procedure was to preserve for appeal the issue of the court's denial of his motions to suppress evidence, which had been the subject of an evidentiary hearing. Final judgment was entered on June 2, 2016, and the defendant was sentenced to 65 months' imprisonment. (DE 32, 33)

         Figueroa filed a timely notice of appeal. (DE 34) I appointed new counsel for that purpose. (DE 36) In die Court of Appeals, new counsel filed an Anders brief, and the defendant filed his own pro se brief, which the court considered. In an unpublished opinion dated April 19, 2017, the Court of Appeals found the appeal of denial of the suppression motion to be frivolous and granted counsel's motion to withdraw. (See copy of decision at ¶ 42-2.) The Court of Appeals' mandate issued on May 11, 2017. (DE 42)

         On July 24, 2018, Figueroa filed a § 2255 motion, together with a motion for leave to file it out of time. (DE 43) The extension motion cited medical grounds, as well as a transfer between institutions and frequent lockdowns, as justification for the delay. (DE 43-2)

         By text order dated August 20, 2018, I ordered that the government file a response to the extension motion. (DE 44) After obtaining a 30-day extension, the government filed a short letter noting that the limitations period under § 2255 is one year, and that Figueroa's motion was filed more than one year after the Court of Appeals' judgment of affirmance, dated April 19, 2017. (DE 46)[1]

         That I knew. I see at least three unaddressed issues here, however.

         First, the conviction, although affirmed by the Court of Appeals, did not become "final" for these purposes until the expiration of the deadline to seek a writ of certiorari from the U.S. Supreme Court. Clay v. United States, 537 U.S. 522, 532, 123 S.Ct. 1072, 1079 (2003) ("We hold that, for federal criminal defendants who do not file a petition for certiorari with this Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires."). That deadline to seek certiorari expires 90 days after the Court of Appeals enters judgment, with irrelevant exceptions. See U.S. Sup. Ct. R. 13(1).[2]

         The date that the Court of Appeals entered judgment (April 19, 2017) plus 90 days comes out to Tuesday, July 18, 2017. The one-year limitation period therefore expired on July 18, 2018-a mere six days before the § 2255 motion was actually received and filed by the clerk on July 24, 2018. (DE 43; see also clerk's "Received" stamp, DE 43-6.)

         Second, the government's submission did not consider the effect of the "prison mailbox rule."[3] Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 2382-83 (1988). Houston recognized the quandary of pro se prisoners who cannot ensure that the court clerk will timely receive their notices of appeal. A prisoner, the Court explained, "has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay." Id. at 271, 108 S.Ct. at 2382. Houston therefore promulgated a rule that a notice of appeal would be deemed filed on the date that the prisoner delivered it to the prison authorities for mailing. See also Fed. R. App. P. 4(c) (amended to comply with Houston as to notices of appeal).

         Twenty years ago, the Third Circuit extended the Houston prison mailbox rule to the one-year AEDPA deadline for motions under 28 U.S.C. § 2255:

[W]e hold that a pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court. And because we see no reason why federal prisoners should not benefit from such a rule, and for the purposes of clarity and uniformity, we extend this holding to the filing of motions under § 2255.

Bums v. Morton, 134 F.3d 109, 113 (3d Cir. 1998).

         It would not be unusual for six days to pass between delivery of papers to die prison authorities and their receipt by the clerk in the mail. I note also that this motion necessarily originated at FCI Berlin in New Hampshire, and that the postmark, applied at Kearny, New Jersey, seems to be "Thu 19 Jul 2018." (Envelope, DE 43-6)[4] If that reading is ...

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