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U.S. v. GIVENS

July 21, 2004.

U.S.
v.
SHARIF JAMAL GIVENS.



The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge

MEMORANDUM OPINION

I. BACKGROUND

Sharif Jamal Givens ("Givens") filed a habeas motion to vacate, set aside or correct a sentence under 28 U.S.C. § 2255. Magistrate Judge M. Faith Angell ("Angell"), to whom the matter was referred, recommended the habeas motion be denied as untimely. Petitioner submitted timely objections to Judge Angell's Report and Recommendation ("MJRR").

  Givens participated in an automobile theft and robbery near the corner of Oxford and Columbia Avenues in Philadelphia. Givens and co-defendant Al Turner: struck the victim with a gun; took $140 in currency from the victim; and stole his car keys and personal identification. Givens and Turner then used the automobile to travel to Bryn Mawr where they robbed a Dunkin Donuts shop.*fn1 On April 4, 1994, Givens entered a plea of guilty to three counts charging him with conspiracy (18 U.S.C. § 371), taking a motor vehicle with intent to cause serious bodily harm (U.S.C. § 2119) and carrying a firearm during a violent crime (18 U.S.C. § 924 (c)). At a Total Offense Level of 21 and a Criminal History Category of IV, Givens's presumptive sentence was fifty-seven to seventy-one months in addition to sixty months consecutive for the firearm charge. The government's § 5K1.1 motion under the United States Sentencing Guidelines ("USSG") was granted, and Givens was sentenced to a period of forty-two months' imprisonment on August 25, 1994.

  The instant § 2255 motion is signed and dated December 10, 2002, was filed on January 14, 2003. Givens seeks relief on the following grounds:
"(1) The conviction was obtained and sentence imposed in violation of the Sixth Amendment Right to Effective Assistance of Counsel at all critical stages of the criminal proceedings; and
(2) The conviction was obtained and sentence imposed in violation of the Fifth Amendment Right to Due Process of Law and Equal Protection of the Laws." See Petitioner's Memorandum of Law at pp 1-2.
II. DISCUSSION

  Petitioner's objections have been considered de novo.

  A. Objections to Finding of Fact #3:

  Givens states that he is not aware of any document of record stating that he commenced his federal sentece on November 22, 2001, and he is unaware there is a place called "FCI Lewisberg."

  Records of the U.S. Bureau of Prisons confirm that Givens was transferred to federal custody on November 22, 2001, and assigned to the United States Penitentiary at Lewisburg (USP Lewisburg). Givens is correct that there is no FCI Lewisberg.

  B. The AEDPA's Statute of Limitations and Claims of Actual Innocence.

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one year statute of limitations for federal defendants who attempt to attack a conviction and/or sentence collaterally. The limitation period runs from the latest of the date on which the conviction became final with three statutory exceptions, none of which is applicable here. 28 U.S.C. § 2255.

  The Court of Appeals has also recognized equitable tolling when the rigid application of the limitations period would be unfair.

 
Generally, this will occur when the petitioner has in some extraordinary way been prevented from asserting his or her rights. The petitioner must show that he or she exercised reasonable diligence in investigating and bringing the claims. Mere excusable neglect is not sufficient.
Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citing Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998)). Further, equitable tolling may be appropriate if (1) the defendant has actively misled the plaintiff; (2) the plaintiff has "in some extraordinary way" been prevented from asserting his rights; or (3) the plaintiff has timely asserted his rights mistakenly in the wrong forum. Id. (citations omitted). Equitable tolling may be appropriate where a motion for appointment of counsel is pending or where the court has misled the plaintiff into believing that he had done everything required of him, but in the final analysis, equitable tolling applies only in the rare situation where it is demanded by sound legal principles as well as the interests of justice. See id.

  These examples do not apply here. Givens claims his petition is not untimely because he has alleged a "constitutional violation that resulted in a fundamental defect amounting to a complete miscarriage of justice." He claims his sentence was based on an erroneous calculation of ...


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