United States District Court, W.D. Pennsylvania
OPINION AND ORDER
DONETTA W. AMBROSE SENIOR JUDGE, U.S. DISTRICT COURT
action, Defendant pleaded guilty to a lesser included offense
of Count 1, 18 U.S.C. § 846. On February 17, 2015, he
was sentenced to a term of imprisonment of 151 months,
followed by a term of supervised release. By certified
order in lieu of mandate, on March 17, 2016, the Court of
Appeals' summarily enforced Defendant's appellate
waiver. Subsequently, on May 8, 2017, Defendant filed a
Motion to Vacate, pursuant to 28 U.S.C. § 2255, in this
Court. Briefing was complete on December 18, 2017, and the
matter is now ripe for disposition. For the following
reasons, Defendant's Motion will be denied, and no
certificate of appealability shall issue.
prisoner in federal custody may move to vacate his or her
sentence under 28 U.S.C. § 2255(a) if such
"sentence was imposed in violation of the Constitution
or laws of the United States." 28 U.S.C. § 2255(a).
"[R]elief under § 2255 is available only when
'the claimed error of law was a fundamental defect which
inherently results in a complete miscarriage of justice, and
... present[s] exceptional circumstances where the need for
the remedy afforded by the writ ... is apparent.'"
United States v. Travillion, 759 F.3d 281,
288 (3d Cir. 2014) (quoting Davis v. United States,
417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). A
district court need not hold an evidentiary hearing on a
Section 2255 motion if the motion, files, and records show
conclusively that the defendant is not entitled to relief.
United States v. Ritter, 93 Fed.Appx. 402, 404 (3d
Cir. 2004). In this case, an evidentiary hearing is
unnecessary, and the Motion will be disposed of on the
Government contends that Defendant's Motion is untimely.
Because Defendant waived his right to appeal, it argues,
Defendant was required to file his Section 2255 Motion by
March 13, 2016 at the latest.
to Section 2255(f), a Defendant must file for collateral
relief within one year of the date that his conviction
becomes final. A conviction becomes final, if the defendant
has appealed, when the time for seeking certiorari expires.
The time for seeking certiorari expires ninety days after the
appeal has been disposed of. I understand the
Government's consternation regarding the potential
manipulation of time limitations. Nonetheless, courts have
applied the full ninety-day period in the context of an
appeal later dismissed due to an appellate waiver. See,
e.g., Walker v. United States, No. 14-625, 2017 U.S.
Dist. LEXIS 159862 (M.D. Ala. Sep. 27, 2017). This approach
respects the possibility of a non-frivolous argument, even if
ultimately rejected by the appellate court, that an appellate
waiver is invalid. I will consider Defendant's Motion
Ineffective Assistance of Counsel
contends that counsel was ineffective in two respects: 1) by
failing to challenge his career offender status; and 2) by
failing to challenge the Court's conclusion that he had a
history of violence.