The opinion of the court was delivered by: Schiller, J.
Pro se prisoner Eric Humbert moves for an extension of time to file a habeas petition pursuant to 28 U.S.C. § 2255. In addition to his request for an extension, "out of an abundance of caution," he filed a habeas petition along with his motion. Though Humbert is not entitled to an extension to file a new petition, the Court will allow him to amend his petition.
A jury convicted Humbert of six felonies, including carjacking, conspiracy to commit armed bank robbery, and related firearms offenses. The Court entered judgment on August 29, 2007. In a separate proceeding before Judge Surrick, Humbert had already been sentenced for similar offenses on August 2, 2005. His overall sentence includes 835 months of incarceration and a five-year term of supervised release.
Humbert's cases were consolidated for appeal. The Third Circuit issued an opinion affirming both district court judgments on July 2, 2009. United States v. Humbert, 336 F. App'x 132 (3d Cir. 2009). Humbert filed a petition for certiorari on September 29, 2009, which the Supreme Court denied on November 2, 2009. Humbert v. United States, 130 S.Ct. 529 (2009).
Humbert filed his request for an extension of time to file a habeas petition on October 22, 2010. He attached a form habeas petition to his motion on which he documented his grounds for relief, all of which claim ineffective assistance of counsel. Specifically, Humbert argues his counsel was ineffective for failing to: (1) challenge the government's use of DNA evidence in his pretrial motions; (2) move for a mistrial or request a curative instruction after a government witness testified regarding an "unrelated" criminal investigation; (3) object to a career offender enhancement at sentencing; (4) object to improper "vouching" by the prosecutor; and (5) move to suppress DNA evidence obtained with an invalid search warrant.
A petitioner is not entitled to receive an extension of time to file a § 2255 petition in this circuit unless he both (1) requests the extension upon or after filing a § 2255 motion, and (2) demonstrates that "rare and exceptional" circumstances warrant equitable tolling in his case. Anderson v. Pa. Attorney Gen., 82 F. App'x 745, 749 (3d Cir. 2003) (applying Green v. United States, 260 F.3d 78, 82-83 (2d Cir. 2001)); see also United States v. Bronson, Crim. A. No. 03-87, 2009 WL 1813177, at *5 (E.D. Pa. June 25, 2009) (noting that the Third Circuit has held "that a district court may grant an extension of time to file an actual § 2255 motion if the petitioner meets both requirements articulated in Green.")
If Humbert does not satisfy the Green requirements, he may still be entitled to amend his petition to "provide factual clarification or amplification" of the claims he has raised as long as his petition was timely filed. United States v. Thomas, 221 F.3d 430, 436-37 (3d Cir. 2000). The petition must also plead facts sufficient to avoid summary dismissal, as permitting amendment of "vague or conclusory" claims would improperly allow petitioners to circumvent the § 2255 statute of limitations. See Anderson, 82 F. App'x at 750-51.
A. Humbert's Petition Does Not Satisfy the Green Standard
Federal courts lack authority to consider the timeliness of a § 2255 petition until such a petition has been filed. United States v. Vas, Crim. A. No. 04-489, 2009 WL 3353088, at *2 (E.D. Pa. Oct. 13, 2009) (citing Anderson, 82 F. App'x at 749). However, if a prisoner articulates grounds for habeas relief in his motion for an extension of time, the Court may consider a motion for extension of time as a § 2255 petition. Vas, 2009 WL 3353088, at *2; see also Bronson, 2009 WL 1813177, at *5 (noting that § 2255 petitioners may request extensions "upon or after filing the petition") (citing Green, 260 F.3d at 82).
Humbert cites Green in his motion, which features an attached habeas petition. (Humbert Mot. for Extension of Time to File Habeas Corpus [Humbert Mot.] 3; Humbert Mot. Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Humbert Petition].) Though Humbert satisfies the first prong of the Green test, he fails to ...