Defendant Curtis Marshall Dixon was convicted in December 2000 on two counts of possession of crack cocaine with the intent to distribute and one count of possession of a firearm by a convicted felon. Defendant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 is now before this court.
The statute of limitations for filing motions pursuant to Section 2255 is one year. See 28 U.S.C. § 2255(f). The one-year period "runs from the latest of" four 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.
"[A] 'judgment of conviction becomes final' within the meaning of § 2255 on the later of (1) the date on which the Supreme Court affirms the conviction and sentence on the merits or denies the defendant's timely filed petition for certiorari, or (2) the date on which the defendant's time for filing a timely petition for certiorari review expires." Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). In this case, defendant was initially sentenced by Judge Katz on March 22, 2001. After defendant appealed, however, the parties agreed to remand the case to Judge Katz for re-sentencing, which occurred on October 1, 2001. After Mr. Dixon filed another direct appeal, the Third Circuit affirmed the judgment of sentence on May 14, 2002. Defendant petitioned the Supreme Court for a writ of certiorari, and that petition was denied on October 21, 2002. See Dixon v. United States, No. 02-6549, 537 U.S. 989 (2002). Thus, the judgment of conviction became final for § 2255 purposes on October 21, 2002. Mr. Dixon filed his § 2255 petition nearly three and a half years later, on April 11, 2006. Accordingly, unless one of the events in 28 U.S.C. § 2255(f)(2)-(4) applies to start the limitations period at a later date, defendant's petition is untimely.
A review of Mr. Dixon's motion and memoranda of law reveals that none of the other events listed in § 2255(f) applies to his petition. Defendant has brought claims that (1) two warrants lacked probable cause, (2) Judge Katz improperly ruled on post-trial motions filed by Mr. Dixon before he filed his § 2255 petition, and (3) his counsel was ineffective for failing to appeal a suppression issue. Mr. Dixon also argues that the government failed to turn over exculpatory information in violation of Brady v. Maryland, 373 U.S. 83 (1963), because it did not identify the partner of the officer who served as the affiant in support of one of the warrants defendant wishes to challenge. None of these arguments, however, (1) implicates a right newly recognized and made retroactive by the Supreme Court, (2) alleges that the government prevented defendant from filing a § 2255 petition, or (3) states that new facts had come to light. Nor does a review of Mr. Dixon's numerous other post-trial motions suggest that any of these events applies to delay the running of the statute of limitations. As a result, the one-year limitations period started on October 21, 2002. Defendant's § 2255 petition was therefore untimely filed, and, absent equitable tolling, the petition must be dismissed.
"Equitable tolling is available 'only when the principle of equity would make the rigid application of a limitation period unfair.'" McAleese v. Brennan, 483 F.3d 206 (3d Cir. 2007) (quoting Merrit v. Blaine, 326 F.3d 158, 168 (3d Cir. 2003)). Thus, "[a] petitioner seeking equitable tolling bears the burden to show that he diligently pursued his rights and that some 'extraordinary circumstances stood in his way.'" Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Equitable tolling may be applied, for instance, "if '(1) the defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum.'" Urcinoli v. Cathel, 546 F.3d 269, 272 (3d Cir. 2008) (quoting Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir. 2006)). Equitable tolling may also be proper "when a claimant received inadequate notice of [his] right to file suit, where a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that [he] had done everything required of [him]." Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).
One contention that defendant has made with regard to the merits of his petition suggests a possible ground for equitable tolling. Mr. Dixon contends that Judge Katz did not follow the procedure spelled out in United States v. Miller, 197 F.3d 644 (3d Cir. 1999). In Miller, the Third Circuit held that "upon receipt of pro se pleadings challenging an inmate's conviction or incarceration -- whether styled as a § 2255 motion or not -- a district court should issue a notice to the petitioner regarding the effect of his pleadings." Id. at 652. This notice is to present the petitioner with a three-pronged choice: "he can (1) have his motion ruled upon as filed; (2) if his motion is not styled as a § 2255 motion[,] have his motion recharacterized as a § 2255 motion and heard as such, but lose his ability to file successive petitions absent certification by the court of appeals; or (3) withdraw the motion, and file one all-inclusive § 2255 petition within the one-year statutory period."
Id. Because the district court in Miller had not followed this procedure, the court of appeals tolled the statute of limitations so that the petitioner could refile his petition. See id. at 652-53.
Defendant is correct that Judge Katz did not follow the Miller procedure in this case. That fact does not entitle Mr. Dixon to equitable tolling, however, because his first motion challenging his conviction and sentence does not appear on the docket until December 24, 2003 -- over two months after the § 2255 limitations period expired.*fn1 The Third Circuit has held that, when a motion potentially triggering Miller notice is filed at a time when a § 2255 motion would already have been untimely, "providing Miller notice would . . . have been an exercise in futility" and therefore not providing Miller notice is "not err[or]." United States v. Chew, 284 F.3d 468, 471 (3d Cir. 2002) (internal quotation marks omitted). In short, "Miller does not operate to save untimely petitions," Galiczynski v. United States, Nos. 98-cr-263, 05-cv-4718, 2007 WL 756726, at *2 (E.D. Pa. Mar. 9, 2007), and defendant is accordingly not entitled to equitable tolling on the ground that he did not receive ...