United States District Court, D. New Jersey
Macon, Petitioner, pro se.
L. Hillman United States District Judge.
about March 22, 2018, Petitioner Lamar Macon, a prisoner
presently confined at the United States Penitentiary at
Allenwood in White Deer, Pennsylvania, submitted a Motion to
Vacate, Set Aside, or Correct his sentence pursuant to 28
U.S.C. § 2255 (the “Petition”). ECF No. 1.
Pursuant to Rule 4 of the Rules Governing Section 2255
Proceedings, the Court reviewed the Petition and summarily
dismissed it without prejudice as untimely but permitted
Petitioner to file a response to present any argument
regarding tolling. Presently before the Court is
Petitioner's response regarding tolling. For the reasons
that follow, the Petition will remain dismissed as Petitioner
has failed to present sufficient explanation or evidence to
warrant equitable tolling.
20, 2015, Petitioner was convicted of various drug offenses
and sentenced to a total of 240 months' imprisonment. ECF
No. 1, Pet. at 2; No. 14-cr-50, ECF No. 676 (judgment).
Petitioner proceeded with a direct appeal to the Court of
Appeals for the Third Circuit, which affirmed his conviction
and sentence. See No. 14-cr-50, ECF No. 901
(mandate). Petitioner file a petition for writ of certiorari
with the Supreme Court of the United States, which was denied
on February 21, 2017. See No. 15-2275, Notice dated
Feb. 21, 2017 (3d Cir.).
year later, Petitioner filed the instant § 2255 Motion.
The Motion was docketed on March 22, 2018 and appears to have
been mailed on March 19, 2018. See ECF No. 1-2
(envelope). Petitioner did not date his Motion or the
supporting brief, so it is unclear when the Petitioner placed
the Motion in the prison's mail system. See ECF
No. 1, Pet. at 14; ECF No. 1-1, Br. at 14. In the Petition,
Petitioner argues that his trial and appellate counsel were
ineffective and that he is actually innocent of certain
offenses because he withdrew from the drug conspiracy and
thus should not be criminally liable for a murder that
occurred after he withdrew. See ECF No. 1, Pet. at
Court reviewed the Petition and, given the date on which his
conviction became final and the date on which he filed the
Petition, determined that it was untimely. The Court
Petitioner's direct appeal of his criminal case concluded
when the Supreme Court of the United States denied his
petition for writ of certiorari on February 21, 2017.
Therefore, his judgment of conviction became final on
February 21, 2017. See Gonzalez v. Thaler, 565 U.S.
134, 149-50 (2012) (holding that a judgment is determined to
be final by the conclusion of direct review, or the
expiration of time for seeking such review, including the
ninety-day period for filing a petition for writ of
certiorari). As a result, unless the statute of limitations
was tolled, the applicable statute of limitations would have
expired a year later on February 21, 2018. See 28
U.S.C. § 2255(f)(1).
The Petition, however, was not filed until on or about March
19, 2018. ECF No. 1-2 (envelope stamped “MAR 19
2018”). See Burns v. Morton, 134 F.3d 109, 113
(3d Cir. 1998) (under the prison mailbox rule, “a pro
se prisoner's habeas petition is deemed filed at the
moment he delivers it to prison officials for
mailing[.]”). Thus, the Petition was filed beyond the
expiration of the applicable one-year statute of limitations
In the section of the Petition entitled “Timeliness of
Motion, ” Petitioner writes only that “The Motion
IS Timely.” ECF No. 1, Pet. at 13. Without making any
determination as to the merits of the Petition, the Court
finds that Petitioner has failed to properly explain why his
Petition is timely under § 2255(f).
ECF No. 3. Given Petitioner's lack of explanation as to
the timeliness of his Petition, the Court gave Petitioner an
opportunity to respond on the timeliness issue and also to
bring to the Court's attention any potential tolling
has since filed a response in which he explains that,
Petitioner is a Federal prisoner, confined to the United
States Penitentiary . . . component of the Federal Correction
Complex . . .Allenwood at White Deer, Pennsylvania. As such,
he is not at Liberty to obtain materials and equipment
necessary for the filing of legal motions, briefs or other
pleadings into ...