The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant Marcel L. Brown, an inmate at Federal Correctional Institution-Schuylkill, has filed a motion pursuant to 28 U.S.C. § 2255 (doc. 579). We conducted an initial review of the motion pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings and required the government to respond to the motion. (doc. 581). The government has filed a response (doc. 588) and Brown has filed a brief in reply (doc. 593), making the motion ripe for consideration. Because the record conclusively shows that Brown's motion is not within § 2255's one-year limitation, we will deny his motion without an evidentiary hearing.
Brown entered a guilty plea for narcotics and money laundering offenses and was sentenced on January 26, 2004, to consecutive terms in prison totaling 216 months. His sentence included a 144 month term of imprisonment for conspiracy to traffic in more than 50 grams of crack cocaine and more than five kilograms of cocaine hydrochloride, in violation of 21 U.S.C. § 846, a 72 month term of imprisonment for distribution and possession with intent to distribute more than 50 grams of crack cocaine and more than five kilograms of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1), and an order of forfeiture for use of a communication facility to facilitate drug trafficking, in violation of 21 U.S.C. § 843(b). Brown's sentence was reduced to 216 months from the guideline range of 360 months, after we granted the government's motion requesting a 40 percent downward departure from the sentencing guidelines' range for Brown's substantial assistance. Brown did not appeal his sentence.
On March 7, 2006, the government filed a motion to reduce Brown's sentence pursuant to Federal Rule of Criminal Procedure 35(b) for substantial assistance in the investigation or prosecution of another.*fn1 The Court granted this motion on March 29, 2006, and reduced Brown's sentence by 48 months to 168 months' imprisonment. (doc. 538). Brown moved for reconsideration of the order reducing his sentence, which we denied on November 17, 2006. (doc. 552). Brown then filed this § 2255 motion.
Brown makes a number of claims in his § 2255 motion. First, he contends that he was wrongfully denied a three-level reduction for acceptance of responsibility pursuant to § 3E1.1(a) and (b) of the United States Sentencing Guidelines.*fn2
Second, Brown sets forth a number of ineffective assistance of counsel claims. Third, Brown claims that he was sentenced "under an unconstitutional mandatory application of the United States [federal] Sentencing Guidelines." Fourth, Brown claims that he was unlawfully sentenced to a term of supervised release.
In opposing the § 2255 motion, the government focuses on the timeliness of the motion. In reply, Brown contends that the motion is timely for four different reasons. First, the one-year limitation for § 2255 motions did not begin until we reduced Brown's sentence for substantial assistance to the government. Second, the government's motion to reduce his sentence was an impediment to filing a § 2255 motion and, pursuant to § 2255(2), changed the starting point for the one-year filing limitation. Third, pursuant to § 2255(4), the one-year limitation should commence on the date that Brown could have used due diligence to discover the facts underlying his claims. Fourth, Brown's motion is timely because it is subject to equitable tolling. We will address each argument in order.
A. The Date on Which Brown's Judgment of Conviction Became Final
With respect to the starting date for calculating the one-year limitation for filing a habeas motion, § 2255 provides:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--(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 ...