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Andrew N. Yao v. United States of America

October 7, 2011

ANDREW N. YAO,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



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

October ___, 2011

MEMORANDUM AND ORDER

Presently before the Court is Petitioner, Andrew N. Yao's, Motion to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody, pursuant to 28 U.S.C. § 2255. Respondent, the United States of America, has filed a Motion to Dismiss Petitioner's Section 2255 Petition For Failure to State A Claim Upon Which Relief Can Be Granted Due to Untimeliness of Claim Under the AEDPA. For the reasons set forth below, the Court will grant Respondent's Motion.

I. FACTUAL BACKGROUND

On June 4, 2008, Petitioner, Andrew N. Yao ("Yao") pled guilty to seven counts of making a false statement to a financial institution in violation of 18 U.S.C. § 1341; one count of wire fraud in violation of 18 U.S.C. § 1343; and one count of engaging in an illegal monetary transaction in violation of 18 U.S.C. § 1957. (Doc. 54.) On February 5, 2009, Yao was sentenced before this Court to sixty (60) months of imprisonment; five (5) years supervised release; a special assessment in the amount of $1,000; and restitution in the amount of $12,530,325.02. (Doc. Entry 78.) Judgment of sentencing was entered by the Court on March 16, 2009. (Doc. 81.)

Yao is currently serving this sentence in the United States Penitentiary in Lewisburg.

On February 5, 2010, Petitioner's counsel, Neil E. Jokelson ("Jokelson"), filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 84.) On March 3, 2010, pursuant to Local Rule of Federal Civil Procedure 9.3(b), this Court entered an Order requiring the Clerk of Court to furnish Yao with the Court's current standard form for filing a § 2255 petition. (Doc. 86.) On June 8, 2010, pursuant to Local Rule 9.3(b) an Order was entered which dismissed Yao's Motion to Vacate, Set Aside, or Correct Sentence without prejudice because Yao failed to submit the correct forms. (Doc. 88.) Twenty days later, on June 28, 2010, Petitioner's counsel filed a Motion to Vacate, Set Aside, or Correct Sentence on the correct forms. (Doc. 89.) An order directing Respondent, the United States of America (" the Government"), to respond to Petitioner's motion was entered on August 25, 2010. (Doc. 90.)

On October 25, 2010, the Government filed a Motion to Dismiss the Petition Due to Untimeliness. (Doc. 91.) The Government argues that because the correct habeas form was not filed until June 28, 2010, Petitioner's motion should be dismissed as time-barred. (Doc. 91.) In response, Petitioner argues that habeas petitions that fix technical deficiencies after the one-year period are considered filed on the date of the original defective petition, and therefore, the June 28, 2010 filing should be treated as if it was filed on February 5, 2010. (Doc. 94.) In the alternative, if the June 28, 2010 filing is not treated as if it was filed on February 5, 2010, Petitioner argues that the Court should apply equitable tolling and treat the June 28, 2010 filing as timely. (Doc. 94.)

Petitioner also argues that he was reasonably diligent in pursuing his habeas claim because he never received notice of dismissal of the original motion, and he attempted to contact his attorney several times about the petition between January and June 2010, but was not sure if his attempts had gone through because of a problem with Lewisburg Prison's e-mail and mail delivery systems. (Doc. 94, Ex. C.) Petitioner's counsel, Jokelson, does not recall being aware of the Court's March 3, 2010 Order to file a proper habeas petition, although he does not deny that his office did receive a timely copy of the Order. (Doc. 94.) Counsel has "no adequate explanation" for failing to follow the Court's Order until June 28, 2010. (Doc. 94.)

II. DISCUSSION

The parties raise two essential issues that are dispositive of the Government's Motion to Dismiss: 1) whether the statute of limitations for filing § 2255 claims is tolled by the filing of a petition later dismissed; and 2) if not, whether Yao is entitled to a tolling of the statute of limitations for filing § 2255 claims on other grounds.

Section 2255 of Title 28 of the United States Code applies a one-year statute of limitations to motions challenging federal custody:

The limitation period shall 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 the exercise of due diligence.

28 U.S.C.A. ยง 2255(f). In the present case, paragraph (1) is the applicable provision to determine the appropriate statute of limitations. Thus, the Court must first ...


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