IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
November 2, 2009
UNITED STATES OF AMERICA,
The opinion of the court was delivered by: Judge Conner
AND NOW, this 2nd day of November, 2009, upon consideration of the defendant's motion (Doc. 120) to vacate his sentence pursuant to 28 U.S.C. § 2255,*fn1 which was filed March 5, 2009, and it appearing that the one-year statute of limitations period applicable to defendant's motion began to run on January 7, 2008,*fn2 see Kapral v. United States, 166 F.3d 565, 569 (3d Cir. 1999) (explaining that "§ 2255's limitation period begins to run on the date on which the defendant's conviction and sentence become 'final'"), and that defendant's motion was therefore untimely, and it further appearing that defendant acknowledges that his § 2255 motion is untimely, (see Doc. 125 at 1 (conceding that "the instant petition under 28 U.S.C. § 2255, filed by petitioner Altimont M. Wilks, was infact [sic] filed untimely")), that this matter does not warrant an equitable tolling of the limitations period, see Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005),*fn3 but that defendant requests leave to file a separate motion for a sentence reduction under 18 U.S.C. § 3582, it is hereby ORDERED that:
1. Defendant's motion under 28 U.S.C. § 2255 is DENIED.
2. A certificate of appealability is DENIED. See 28 U.S.C. § 2253(c).
3. Defendant may forthwith file a motion pursuant to 18 U.S.C. § 3582.
CHRISTOPHER C. CONNER United States District Judge