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United States v. Nixon

November 8, 2007

UNITED STATES OF AMERICA
v.
MARK A. NIXON



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION

Presently before the Court for disposition is the MOTION UNDER 28 USC § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY filed pro se by Petitioner Mark A. Nixon ("Nixon") (Document No. 47), to which the government has responded in opposition (Document No. 50). For the reasons discussed below, the Court will deny the § 2255 motion without holding an evidentiary hearing.

Factual Background

On February 18, 2004, a grand jury for the Western District of Pennsylvania returned a one-count Indictment against Nixon in which he was charged with possession of a firearm by a convicted felon, on or about September 19, 2003, in violation of Title 18, United States Code, section 922(g)(1). In 2003, Nixon was arrested for conduct that resulted in both a multi-count state indictment and the instant federal indictment. He was ultimately convicted in state court and was sentenced to five to ten years imprisonment.

On June 1, 2004, counsel for Nixon, Marketa Sims, Assistant Federal Public Defender, filed a Motion to Suppress Evidence. See Document No. 15. A response to the Motion to Suppress was not filed by the government as counsel for the parties notified the Court on June 16, 2004, the Nixon would plead guilty to the pending charge.

At a hearing on June 28, 2004, Nixon changed his previous plea of not guilty to a plea of guilty. Sentencing was scheduled for September 28, 2004. After the plea hearing, Nixon wrote a letter to the Court in which he stated his desire to withdraw his guilty plea and have new counsel appointed to represent him.

On July 14, 2004, William C. Kaczynski, Esquire, was appointed to represent Nixon. Due to scheduling conflicts, Attorney Kaczynski filed a Motion to Withdraw as Counsel, which was granted by the Court on July 29, 2004. On that same day, Samuel J. Reich, Esquire, was appointed to represent Nixon.

Thereafter, Attorney Reich notified the Court that Nixon no longer desired to withdraw his plea and a sentencing date should be scheduled. As noted supra, sentencing was originally scheduled for September 28, 2004. However, the original sentencing date was deferred by the Court pending the outcome of certain cases pending before the United States Supreme Court regarding the constitutionality of the federal sentencing guidelines. Sentencing was further delayed at the request of Nixon until after his sentencing in state court on charges related to the instant matter, which was scheduled for February 5, 2005.

On February 18, 2005, Nixon was sentenced by this Court to a term of imprisonment of 103 months*fn1 to be served concurrently with the undischarged term of imprisonment imposed in the Criminal Division of the Allegheny County Court of Common Pleas. Additionally, Nixon was sentenced to a term of three years supervised release.

On June 16, 2005, counsel for Nixon, Samuel Reich, Esquire, filed in the United States Court of Appeals for the Third Circuit an Anders brief,*fn2 in which he cited a lack of non-frivolous appealable issues and requested leave to withdraw as counsel. The appellate court notified Nixon that he could file a pro se brief. After Nixon failed to file a pro se appellate brief, the court of appeals granted counsel's motion to withdraw and affirmed Nixon's conviction and sentence. See Opinion, No. 05-1648, April 21, 2006. The circuit court issued its mandate on May 15, 2006.

In July 2007, Nixon filed the instant pro se § 2255 motion in which he challenges his 2005 conviction and sentence.

Evidentiary Hearing

Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court must first determine whether an evidentiary hearing is required in this case. After reviewing the filings in this case, and the record, the Court finds that an evidentiary hearing is not required because Nixon has failed to raise any genuine issue of material fact. See United States v. Essig, 10 F.3d 968, 976 (3d Cir. 1993). Additionally, the files and records of the case conclusively establish that Nixon is not entitled to relief. United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005). Therefore, the Court will proceed to the merits of the § 2255 motion.*fn3

Discussion

As a threshold matter, it appears to the Court that the instant motion is time-barred under the one-year statute of limitations as set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA established a mandatory, one-year "period of limitation" for § 2255 motions, which runs from the latest of the following events:

(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.

28 U.S.C. § 2255(1)-(4). See also United States v. Miller, 197 F.3d 644, 649 (3d Cir.1999) (Section 2255, as amended by AEDPA, imposes a one-year statute of limitation).

When a petitioner files a direct appeal, his conviction becomes final upon the expiration of the period for application for a writ of certiorari. Kapral v. United States, 166 F.4d 565, 567 (3d Cir. 1999). When a petitioner does not file a direct appeal, his conviction becomes final ten days after the conviction, upon the expiration of the appeal period. See, e.g., United States v. Massara, 174 Fed. Appx. 703, 708 (3d Cir. 2006).

The limitations period began to run as of the date that Nixon's conviction became final. See 28 U.S.C. § 2255(1). This occurred on May 15, 2006, when the mandate from the Third Circuit was issued. Nixon was required to file a § 2255 motion on or before May 14, 2007; however, ...


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