The opinion of the court was delivered by: Eduardo C. Robreno, J.
Robert Moore (a/k/a Hafiz Jenkins) ("Petitioner") is a federal prisoner incarcerated at the Federal Correctional Institution in Minersville, Pennsylvania. Petitioner filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion") because federal prosecutors did not have proper jurisdiction to try his case and the decision to indict him in federal court violated his right to due process under the Fifth Amendment. 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 January 30, 2002, Philadelphia Police Department officers arrested Petitioner during a pedestrian stop and found Petitioner to be in possession of heroin and a loaded, large-caliber revolver. Phila. Police Dep't Arrest Report (Oct. 21, 2011), Pet'r's Mot. Ex. A, ECF No. 61. The Philadelphia District Attorney's Office charged and prosecuted Petitioner with narcotics and firearms offenses. Appeal from J. of Conv., Pet'r's Mot. Ex. B. On September 17, 2002, a federal grand jury indicted Petitioner on three counts: (1) possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1); (2) use of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Id. On February 3, 2003, Petitioner was found guilty on all three counts after a bench trial. Order, Feb. 3, 2003, ECF No. 34. The case was reassigned to this Court on April 22, 2003. Reassign. Order, Apr. 22, 2003, ECF No. 36. On June 20, 2003, Petitioner was sentenced to 144 months of imprisonment.*fn1 Judgment, June 23, 2003, ECF No. 50.
Petitioner filed an appeal on September 18, 2003. Notice of Appeal, ECF No. 56. On October 5, 2004, the Third Circuit denied Petitioner's appeal and affirmed this Court's judgment. United States v. Moore, 109 F. App'x 503, 505 (3d Cir. 2004). The Third Circuit issued the mandate on October 27, 2004. Order, Oct. 27, 2004, ECF No. 60. Judgment became final on January 25, 2005. Id. On November 14, 2011, Petitioner filed the instant petition.*fn2 Pet'r's § 2255 Motion, ECF No. 63.
The Government moved to dismiss the § 2255 Motion as untimely. Gov't's Mot. to Dismiss 1, ECF No. 66. Thereafter, Petitioner filed a timely response asserting that his petition falls within § 2255(e), permitting him to file a motion under 28 U.S.C. § 2241, which is not subject to the one-year statute of limitations. Pet'r's Resp. 1-3, ECF No. 67. 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. 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 "if 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 or to file a § 2241 petition. Therefore, the Court will deny the motion and dismiss with prejudice.
A. The § 2255 Motion is Untimely
Petitioner's § 2255 Motion is untimely. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations period for § 2255 motions. 28 U.S.C. § 2255(f). That period generally runs from "the date on which the judgment of conviction becomes final."*fn4 Id. § 2255(f)(1).
Petitioner's judgment became final on January 25, 2005, when his time to petition for a writ of certiorari for review of the Third Circuit's judgment expired. See Clay v. United States, 537 U.S. 522, 525 (2003) ("[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction."); U.S. Sup. Ct. R. 13(1) (providing ninety-day period to file petition for writ of certiorari to review appellate court judgment). Petitioner had until January 26, ...