The opinion of the court was delivered by: (Judge Kane)
On January 7, 2004, Petitioner Michael Richman, a Jamaican citizen, was charged in a one-count indictment with illegally re-entering the United States after he had previously been convicted of an aggravated felony and removed from the country, in violation of 8 U.S.C. §§ 1326(a) and (b)(2) and 6 U.S.C. §§ 202(3) and (4) and 557. (Doc. No. 1.) Petitioner was arraigned on January 27, 2004 and entered a plea of not guilty.
On February 20, 2004, Petitioner entered into a plea agreement with the Government pursuant to which he agreed to plead guilty to the crime of illegal re-entry and to accept responsibility in exchange for the Government agreeing, inter alia, to recommend that the Court grant Petitioner a three-level reduction in the Petitioner's offense level. (Doc. No. 13.) The plea agreement advised Petitioner that the maximum sentence that could be imposed for the offense was a term of imprisonment of up to 20 years, in addition to a fine of $250,000 and the imposition of various costs. (Id.) On March 5, 2004, Petitioner changed his plea to guilty following a hearing before this Court.
On June 21, 2004, this Court sentenced Petitioner to 70 months imprisonment, a $100 special assessment, and a $400 fine. The Court subsequently entered Petitioner's judgment and commitment on June 23, 2004. Petitioner did not take a timely direct appeal of his conviction or sentence. Petitioner's conviction and sentence therefore became final as of July 4, 2004. See Fed. R. App. P. 4(b)(1)(A)(i) (defendant must file notice of appeal with the district court within ten days after the entry of judgment).
On January 13, 2006, Petitioner moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Doc. No. 32.) Petitioner advances two arguments in support of his motion. First, Petitioner claims that this trial counsel was ineffective as a matter of law for incorrectly calculating Petitioner's sentencing range, and for failing to take a timely appeal of Petitioner's sentence. Second, Petitioner claims that on January 12, 2005, the United States Supreme Court ruled that the mandatory provisions of the United States Sentencing Guidelines were unconstitutional and therefore the sentence imposed by this Court should be vacated. The United States filed a brief in opposition to Petitioner's motion. The motion is now ripe for disposition and will be denied.
Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence on the grounds 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 (2004). However, § 2255 does not afford a remedy for all errors that may have been made at trial or sentencing. United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993). "The alleged error must raise 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. (quoting United States v. Hill, 368 U.S. 424, 428 (1962)).
Furthermore, § 2255 generally limits a federal prisoner's ability to attack the validity of his sentences to cure jurisdictional errors and errors which rose to the level of a constitutional violation. United States v. Timmreck, 441 U.S. 780, 783-84 (1979).
The decision whether to hold a hearing when a prisoner moves to vacate a judgment under § 2255 is left to the sound discretion of the district court. Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In general, if a petitioner raises an issue of material fact, a district court must afford a hearing in order to determine the truth of the prisoner's allegations. Essig, 10 F.3d at 976. However, a prisoner is not entitled to a hearing if the allegations set forth are contradicted conclusively by the record or if the allegations are patently frivolous. Solis v. United States, 252 F.3d 289, 295 (3d Cir. 2001).
A. Statute of Limitations
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), motions brought pursuant to 28 U.S.C. § 2255 must be filed within one year from the date on which a petitioner's conviction becomes final. 28 U.S.C. § 2255. The AEDPA's statute of limitations period is not jurisdictional in nature but instead constitutes an affirmative defense that the United States may waive. United States v. Bendolph, 409 F.3d 155, 160 (3d Cir. 2005) (en banc) (citations omitted). In Bendolph, the majority of the United States Court of Appeals for the Third Circuit held that upon finding a potential AEDPA statute of limitations problem in a habeas case arising under § 2255, a court may raise a statute of limitations issue sua sponte at any point during the proceedings, regardless of the Government's position, provided the court gives notice of the issue and an opportunity to respond, and analyzes any potential prejudice that may befall the petitioner by raising the defense. Id. at 169.
In this case, Petitioner's conviction and sentence became final as of July 4, 2004. Therefore, any timely motion brought pursuant to § 2255 had to have been filed not later than July 3, 2005. Petitioner did not file his motion to vacate his sentence until January 13, 2006 -- roughly 18 months after his conviction became final.*fn1 Although Petitioner claims to have filed a motion seeking mandamus relief with the Third Circuit that was reportedly denied on December 15, 2005, nothing in this representation has a bearing on whether Petitioner's instant § 2255 motion is itself timely or subject to principles of equitable tolling. Nevertheless, the United States has elected not to assert as an affirmative defense that the pending motion is untimely, and the Court declines to raise this issue sua sponte, which would require both ...