The opinion of the court was delivered by: Eduardo C. Robreno, J.
Gregory H. Ladner ("Petitioner") was a federal prisoner incarcerated at the Federal Correctional Institution in Fort Dix, New Jersey. While incarcerated, Petitioner filed a pro se motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 (hereinafter "§ 2255 Motion") because he received constitutionally ineffective assistance of counsel. The Government moved to dismiss the petition as untimely. For the reasons set forth below, Petitioner's motion is time-barred and the Court will deny and dismiss with prejudice.
On July 8, 2005, a jury found Petitioner guilty of one count of knowingly making false statements and representations to a federal firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A). On January 10, 2006, the Court sentenced Petitioner to eighteen months of imprisonment, three years of supervised release, a $500 fine, and a special assessment of $100. Judgment, ECF No. 57.
The Court suspended execution of Petitioner's sentence until February 9, 2006, at which time Petitioner was directed to report to a designated prison. Order, Jan. 10, 2006, ECF No. 55. On January 13, 2006, Petitioner directly appealed his sentence. Notice of Appeal 1, ECF No. 58.
While his appeal was pending, Petitioner failed to surrender to serve his sentence and thereby became a fugitive. Petitioner's appellate counsel pursued Petitioner's appeal despite his fugitive status. On June 8, 2007, the Third Circuit, nevertheless, dismissed his appeal under the fugitive disentitlement doctrine. See United States v. Ladner, 226 F. App'x 250, 251-53 (3d Cir. 2007) ("We will not permit [Petitioner] to thumb his nose at justice and to remain a fugitive while we hear his appeal. We see no compelling reason to hear this case."). Petitioner did not seek a writ of certiorari.
On July 28, 2009, Petitioner was arrested in Los Angeles, California. On April 18, 2011, while incarcerated, Petitioner filed a § 2255 Motion.*fn1
Petitioner served his term of incarceration and, according to the Federal Bureau of Prisons' inmate locater, was released on November 18, 2011. Thus, Petitioner is currently on supervised release.
The Government moved to dismiss because the § 2255 Motion is untimely. Mot. to Dismiss 1, ECF No. 71. The Court granted Petitioner's request for an extension of time to respond, and, thereafter, Petitioner filed a timely response. Pet'r's Resp. 1, ECF No. 74. The matter is now ripe for disposition.
A federal prisoner in custody under sentence of a federal court
challenging his sentence based on a violation of the U.S. Constitution
or laws of the United States may move the court that imposed the
sentence to vacate, set aside, or correct the sentence.*fn2
See 28 U.S.C. § 2255(a) (Supp. IV 2011). In a §
2255 motion, a federal prisoner may attack his sentence on any of the
following grounds: (1) the judgment was rendered without jurisdiction;
(2) the sentence imposed was not authorized by law or otherwise open
to collateral attack; or (3) there has been such a denial or
infringement of the constitutional rights of the prisoner as to render
the judgment vulnerable to collateral attack. See id. § 2255(b).
A petitioner is entitled to an evidentiary hearing as to the merits of his claim unless it is clear from the record that he is not entitled to relief.*fn3 The Court must dismiss the motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Section 2255 R. 4(b). A prisoner's pro se pleading is construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 32 (3d Cir. 2011).
Based on the § 2255 Motion and the record of proceedings, it plainly appears that Petitioner is not entitled to relief because his motion is untimely. Furthermore, Petitioner is not entitled to equitable tolling. Therefore, ...