The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM AND ORDER OF COURT DENYING DEFENDANT'S MOTION FOR HABEAS CORPUS RELIEF UNDER 28 U.S.C. § 2255 (DOC. NO. 59)
I. Introduction and Background
Presently before the Court is Defendant Noel Clive's Habeas Corpus Motion to Vacate Sentence Under 28 U.S.C. § 2255 ("Motion to Vacate"). (Doc. No. 59). After careful consideration of petitioner's motion and memoranda of law, the government's response and memorandum in opposition, and review of the plea agreement and transcripts of the change of plea and sentencing hearings, the Court will deny petitioner's Motion to Vacate.
On July 10, 2006, Petitioner pleaded guilty to Count Two of a two-count indictment, charging him with interstate travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b) & (e),*fn1 and acknowledged responsibility for the conduct charged in Count One, accusing petitioner of coercion and enticement of a minor in violation of 18 U.S.C. §2422(b).*fn2 As part of his plea agreement, Petitioner waived "the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742," as well as the "right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction." Plea Agreement (Doc. No. 42) at 3. On October 27, 2006, this Court sentenced Petitioner to a term of imprisonment of 57 months and a ten-year term of supervised release. See Minute Entry, October 27, 2006 (Doc. No. 55) at 1. The Judgment and Commitment Order was entered on November 13, 2006. (Doc. No. 56). No appeal was filed.
On December 10, 2007, Petitioner filed his Motion to Vacate. By Order dated January 23, 2008, Miller Notice and Order (Doc. No. 60), this Court directed defendant to make a "Miller" election. See United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999). The Miller notice advised Petitioner of his option to either have his motion ruled upon as filed or withdraw the motion and file one all-inclusive Section 2255 petition within the one-year statutory period under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244.
Petitioner rejected the option to re-characterize his motion and insisted that this Court review his Motion to Vacate as filed, as supplemented, however, by a Memorandum of Facts and Law in Support of and Supplement to Petitioner's 28 U.S.C. § 2255 Motion which he filed on February 22, 2008. (Doc. No. 62). Subsequently, on May 27, 2008, Petitioner filed a Motion to Amend his Motion to Vacate, requesting this Court to consider his initial Motion to Vacate, his Memorandum of Facts and Law in Support of and Supplement to Petitioner's 28 U.S.C. § 2255 Motion, and his argument in support of his motion to amend as one all-inclusive motion to vacate under Section 2255. Motion to Amend Petitioner's 28 U.S.C. § 2255 Motion (Doc. No. 67).*fn3
This Court granted Petitioner's Motion to Amend on May 28, 2008. Order of Court Granting Motion to Amend Motion to Vacate Under 28 U.S.C. § 2255 (Doc. No. 68). The Order also directed the government to file a response to Petitioner's Section 2255 Motion and for Petitioner to show cause as to why his Motion to Vacate should not be dismissed as untimely. Id. at 3, 5. In More fully, the Order of Court stated as follows:
The Court finds it appropriate to permit petitioner to so amend his motion to vacate, see United States v. Miller, 197 F.3d 644 (3d Cir. 1999); Fed.R.Civ.P. 15(a), and, therefore, petitioner's Motion to Amend Petitioner's § 2255 Motion to Vacate Sentence Previously Filed Pro Se (Document 59), Supplemented by Petitioner's Miller Election, (Document 61) (doc. no. 67) is GRANTED.
III. Response by Government
The Court also deems it advisable to order a response to petitioner's amended motion to vacate, following filing of the transcript of petitioner's change of plea and sentencing hearings. Accordingly, the government is hereby directed to order the transcripts of said hearings to be prepared and filed forthwith, and to file a response within 30 days thereafter, but in no event later than July 18, 2008.
IV. RULE DIRECTED TO PETITIONER TO SHOW CAUSE WHY MOTION TO VACATE SHOULD NOT BE DISMISSED AS UNTIMELY
Petitioner's motion to vacate appears to be untimely under 28 U.S.C. §2255(f)(1) and (f)(4) ("(f) 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; . . . (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence."). Pursuant to the Federal Rules of Appellate Procedure, a defendant has ten business days to file a notice of appeal. Fed. R. App. P. 4(b)(1), 26(a). Where, as here, a defendant does not appeal from the judgment of conviction and sentence, it becomes final after the ten days for filing such an appeal expires. E.g., United States v. Bass, 2006 WL 3825151, *2 (E.D.Pa. 2006) ("petitioner's sentence became final ten days from the entry of the judgment, on March 6, 2001. Through the exercise of due diligence, petitioner could have discovered the facts supporting the pro se §2255 Motion on this date. Thus, the AEDPA limitations period for petitioner's §2255 Motion expired one year from March 6, 2001, on March 6, 2002." footnotes omitted).
Petitioner's judgment of conviction and sentence became final on November 23, 2006, the one year limitation for filing a motion to vacate expired on November , 2007, and petitioner did not file his initial motion to vacate until December 10, 2007, some  days out of time. Moreover, the matters raised in petitioner's all-inclusive motion to vacate all appear to be matters that were known or knowable in the exercise of due diligence prior to entering a plea of guilty. Thus it appears that petitioner's motion to vacate is untimely.
The United States Court of Appeals for the Third Circuit held, in United States v. Bendolph, 409 F.3d 155 (3d Cir. 2005), that a federal court hearing a post conviction relief motion has the authority to raise a statute of limitations issue sua sponte. However, the Court should ordinarily "give notice that a limitations problem may exist, as well as provide an opportunity for a habeas movant or petitioner to respond" to the Court's concerns. Id. at 165, n.15. There may be reasons not apparent on the record that could justify equitable tolling of the statute of limitations. See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001). Accordingly,
On or before June 23, 2008, petitioner shall file a Response to Rule to Show Cause and Memorandum of Law, and shall show cause why his motion to vacate should not be dismissed as untimely pursuant to 28 U.S.C. § 2255(f).
Order of Court (doc. no. 68), at 3-5.
As the government notes in its timely Response to Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. no. 71) at 3-4, petitioner has not filed a response to the Rule to Show Cause.
Petitioner argues in his Motion to Vacate that counsel was ineffective for advising him to enter into the plea agreement and related stipulations, and for his attorney's failure to file an appeal challenging his conviction and sentence pursuant to an unconstitutional statute. Petitioner contends that the statute under which he was convicted, 18 U.S.C. § 2423(b), exceeds Congress's power under the Commerce Clause. Although Petitioner recognizes that Section 2423(b) has been upheld by the courts as a "channels of commerce" regulation, United States v. Lopez, 514 U.S. 549, 558 (1995), he insists that the statute improperly "blurs critical distinctions between 'travel' and 'transportation,'" and "sidesteps the repeated direction from courts that commerce regulation be restricted to matters of 'substantial effect' on interstate commerce." Motion to Vacate (Doc. No. 59) at 15-16 of 53.
For the following reasons, the Petitioner's Motion to Vacate will be denied.
28 U.S.C. § 2255(b) provides:
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, 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.
When a motion is made under Section 2255, whether to conduct a hearing is within the sound discretion of the district court. In exercising that discretion, the court "must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief." United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992) (quoting Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)).
In order to successfully demonstrate ineffective assistance of counsel, a petitioner must establish that (1) the performance of counsel fell below an objective standard of reasonableness; and (2) the errors of counsel prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-92 (1984). The first prong of the Strickland test requires the defendant show that counsel's performance was actually deficient. Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). A court "deciding an actual ineffectiveness claim must judge the reasonableness of the counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. Counsel's conduct presumptively "falls within the wide range of reasonable professional assistance," and the defendant "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689-90 (quoting Michel v. Louisiana, 350 U.S. 91, 93 (1955)).
The second prong of the Strickland test requires the defendant show that the deficient performance so prejudiced the defense as to raise doubt as to the accuracy of the outcome of the trial or sentence. 466 U.S. at 693-94. The petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Jermyn, 266 F.3d at 282 (quoting Strickland, 466 U.S. at 693). A "reasonable ...