The opinion of the court was delivered by: Conti, District Judge.
Pending before the court is the Motion to Correct Miscarriage of Justice (Doc. No. 278) filed by Thomas Price ("petitioner" or "Price") and the government's response to that motion, as well as petitioner's Motion to Correct Manifest Error, or in the Alternate, Motion under Rule 35 (Doc. No. 281), with petitioner's supplemental briefs. After reviewing petitioner's motions and briefs, the government's response to the first motion, and the record, the court will deny petitioner's motions, because the motions were not timely filed and even assuming for the purposes of argument that the motions were not time barred, the motions, the files and records of the case conclusively show that petitioner is not entitled to relief.
On November 21, 1994, a grand jury returned a superseding indictment charging petitioner with armed bank robbery, in violation of 18 U.S.C. § 2113(d), and with knowingly and willfully carrying and using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). (Doc. No. 52.) On February 17, 1995, after a four-day jury trial, petitioner was convicted of both charges. (Trial Tr. Feb. 14-17, 1995.)
Testimony presented at petitioner's trial included, among other things, that on September 12, 1994, a car driven by Haywood Jones ("Jones"), with Price beside him in the front seat and Charles Stubbs ("Stubbs") in the back seat (Trial Tr. 80:18-19, Feb. 14, 1995), arrived outside a branch of the Mellon Bank in Pittsburgh, Pennsylvania (Trial Tr. 5:8-9, Feb. 14, 1995). While Jones waited in the car, Price and Stubbs donned ski masks and exited the car, with Stubbs carrying a handgun. (Trial Tr. 5:9-10, Feb. 14, 1995.) The two men entered the bank, and Stubbs, still carrying the gun, demanded that a teller open her cash drawer. (Trial Tr. 22:7-9, Feb. 14, 1995.) Price jumped over the teller counter, took the money from that drawer, and demanded that another teller open her drawer, which he also robbed. (Trial Tr. 22:12-22, Feb. 14, 1995.) Price and Stubbs left the bank with $4,920 (Trial Tr. 48:19-23, Feb. 14, 1995), rejoined Jones in the car, and drove away (Trial Tr. 6:23-25, Feb. 14, 1995).*fn1
On June 2, 1995, petitioner was sentenced to 322 months imprisonment (262 months for armed bank robbery, followed by 60 consecutive months for the weapons charge). (Sentence Tr. 25:24-26:4 and 27:7-9, June 2, 1995.)
On February 15, 1996, petitioner's convictions were affirmed by the United States Court of Appeals for the Third Circuit. United States v.
On or about January 28, 2005, petitioner's Motion to Correct Miscarriage of Justice was filed of record.*fn2 In this motion, petitioner alleged that his sentence was enhanced by reason of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), without proper notice to him. On February 18, 2005, the government responded to that motion.
On or about November 16, 2005, petitioner filed the Motion to Correct Manifest Error, or, in the Alternate, Motion under Rule 35. On or about November 18, 2005, he filed a supplemental brief, and on or about December 30, 2005, he filed another supplemental brief. In the second motion, petitioner alleged that: (a) his two convictions and sentences should have been merged, as both involved the same incident and weapon; (b) his trial counsel, Mr. Porter, was ineffective in that he failed to enter into evidence the plea bargain of petitioner's co-defendant, Stubbs; (c) the trial court improperly coerced the jurors to resolve a deadlock; and (d) with regard to the section 924(c) violation, the trial court erred in its jury instructions on the aiding and abetting standard.
The government was not ordered to respond to the second motion.
Under 28 U.S.C. § 2255, a federal prisoner in custody may move the court which imposed the sentence*fn3 to vacate, set aside or correct the sentence upon the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.
The statute provides as a remedy for a sentence imposed in violation of law that "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id.
A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to 28 U.S.C. § 2255 "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . ." Id.; see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). For reasons set forth herein, and based upon the motions, the submissions of the parties and the record in the case, the court determines that petitioner's motions shall be denied as a matter of law. An evidentiary hearing, therefore, is not required.
The court understands petitioner's pro se post-conviction motions as challenging his sentence. Historically, district courts have recharacterized such motions as motions brought pursuant to 28 U.S.C. § 2255 (the statutory means by which federal prisoners attack their sentences on collateral review). United States v. Miller, 197 F.3d 644, 646 (3d Cir. 1999). If a motion is recharacterized, the district court should notify the petitioner that the court intends to treat the filing as a motion filed under 28 U.S.C. § 2255. Castro v. United States, 540 U.S. 375 (2003); Miller, 197 F.3d at 652.*fn4 The notice, however, in the circumstances of this case would be unavailing and futile by reason of the motions being time barred. The instant motions and any successive motions filed by petitioner challenging his sentence would be time barred as a matter of law.
"The Antiterrorism and Effective Death Penalty Act of 1996 ('AEDPA') provides that a one-year period of limitation applies to a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255." Lloyd v. United States, 407 F.3d 608, 611 (3d Cir. 2005). Section 2255 states, in relevant part, that "[a] 1-year period of limitation shall apply to a motion under this section." 28 U.S.C. § 2255. The statute provides that the limitations period shall run from the latest of the following:
(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.
The United States Court of Appeals for the Third Circuit affirmed petitioner's conviction on January 12, 1996. Price, 76 F.3d at 526. Petitioner had ninety days to petition for a writ of certiorari, 28 U.S.C. § 2101(c), and as reflected in the docket, failed to do so. His judgment of conviction became final within the meaning of section 2255 at the expiration of ninety days, on April 11, 1996. See Clay v. United States, 537 U.S. 522, 525 (2003); Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). The AEDPA was signed into law on April 24, 1996, and petitioners who, like petitioner in this case, had not filed a motion under section 2255 at the time the AEDPA became effective, were afforded a full year, until April 23, 1997, to prepare and file their motions. Kapral, 166 F.3d at 567 (citing Burns v. Morton, 134 F.3d 109, 111-12 (3d Cir. 1998)). Therefore, petitioner had until ...