United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
VIRGINIA EMERSON HOPKINS, District Judge.
Defendant Hollie Brooks Brown ("Defendant") has filed a pro se Motion for Leave of Court To File 18 U.S.C. § 2255 (f)(3) or (4) Due to New Supreme Court Ruling (the "Motion"). Cv. Doc. 1. The court entered an order requiring the Government to show cause why the Motion should not be granted. Cv. Doc. 2. After a court-granted extension of time, the Government filed its Response. Cv. Doc. 4. In its Response, because "the body of the [Motion] sets forth claims of error and requests for relief...[, ] the [G]overnment presume[d] that [Defendant] intended the [Motion] itself to be a motion for relief filed under § 2255 and answer[ed] it accordingly." Cv. Doc. 4, fn. 1. The court then entered an Order Regarding Summary Disposition, giving the Defendant 20 days to support his Motion before the court took it under advisement. Cv. Doc. 5. Defendant filed a Reply to the Government's Response and a Response to the court's Order. Cv. Docs. 6, 7. Accordingly, the matter has been fully briefed. and is under submission.
Having considered the pleadings and relevant law, the court concludes that the Motion is due to be denied as time-barred.
On April 20, 2009, pursuant to a written plea agreement, Defendant entered a counseled plea of guilty to one count of being a felon in knowing possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), one count of possession with intent to distribute five grams or more of a mixture and substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and one count of possession with intent to distribute a mixture and substance containing cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). At the sentencing hearing, the court specifically found Defendant's sentence as to the 922(g)(1) count to be subject to the ACCA enhancement based on his having three prior convictions for serious drug offenses ( see 18 U.S.C. § 924(e)), and sentenced Defendant to a term of 180 months as to each count separately, with each count to be served concurrently with the other. On September 21, 2009, the court entered a final judgment to that effect. Cr. Doc. 69. Defendant did not appeal his conviction or judgment.
The pending pro se Motion was filed on November 14, 2013. It is signed and dated November 12, 2013. Cv. Doc. 1 at 12, 13.
II. SECTION 2255 TIME LIMITATIONS
A § 2255 motion is subject to a one-year statute of limitations that runs 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. § 2255(f).
Once a § 2255 motion is filed, it is subject to preliminary review, and "[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, the judge must dismiss the motion and direct the clerk to notify the moving party." Rule 4(b) of the Rules Governing § 2255 Proceedings. Further, while district courts are not obligated to do so, they are permitted to consider, sua sponte, the timeliness of a § 2255 motion, even after the pre-answer, initial screening stage of the proceeding, provided the petitioner is afforded fair notice and an opportunity to respond prior to dismissal on such ground. See Edwards v. United States, 295 Fed.App'x 320, 321 (11th Cir.2008); Turner v. United States, 2012 WL 3848653, at *18 n. 15 (N.D.Ala. Aug. 30, 2012) (Hopkins, J.) (reconsideration denied, 2012 WL 6186067 (N.D.Ala. Dec 07, 2012)); Kizziah v. United States, ...