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United States v. Krauss

May 11, 2009

UNITED STATES OF AMERICA
v.
MARK KRAUSS



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

MEMORANDUM AND ORDER

Now before the Court is Petitioner's pro se Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (the "Motion"). For the reasons discussed below, the Motion will be denied.

I. BACKGROUND

On April 30, 2002, Petitioner Mark Krauss ("Petitioner") was charged by indictment with one count of possession of a loaded firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On October 20, 2003, Petitioner entered a plea of guilty. On February 9, 2004, Petitioner filed a motion to withdraw his guilty plea. After an evidentiary hearing, the Court granted his motion on March 18, 2004. On May 4, 2004, Petitioner was charged by superseding indictment with one count of possession of a loaded firearm by an armed career criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On July 9, 2004, he was convicted after a jury trial. On September 8, 2005, the Court sentenced him to 84 months of imprisonment, three years of supervised release, a fine of $1,000, and a special assessment of $100. Petitioner did not file a direct appeal.

On September 8, 2006, Petitioner filed a pro se motion for an extension of time to file a motion pursuant to 28 U.S.C. § 2255. On September 19, 2006, the Honorable John R. Padova, sitting as the emergency judge, denied the motion for an extension without prejudice. On September 22, 2006, the Clerk of the Court docketed Petitioner's original Motion. On October 5, 2006, because the original Motion was submitted on the incorrect form, the Court ordered the Clerk to furnish Petitioner with a copy of the current Section 2255 form and required Petitioner to file the Motion on the correct form within 30 days. On November 20, 2006, the Clerk of the Court docketed the corrected Motion, and the Government filed its response on January 12, 2007.

II. DISCUSSION

In his Motion, Petitioner raises two main grounds for relief: (1) he was denied his right to a fair trial and to due process because of prosecutorial misconduct before the grand jury; (2) his trial counsel provided ineffective assistance by (a) failing to seek dismissal of the indictment based on the prosecutorial misconduct before the grand jury; (b) failing to investigate the background of the primary Government witness; (c) "prejudicing" Petitioner's case before it became a federal court matter; and (d) failing to object to the Government's evidence about his prior conviction for witness intimidation.

A. Petitioner's Motion Was Timely

1. The Original Motion

The Government first contends that the Motion is barred by the one-year statute of limitations for filing a motion pursuant to 28 U.S.C. § 2255. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that the one-year period of limitation begins to 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 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 ...


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