United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, Chief District Judge.
David Alexander Ramey, Jr., a federal inmate proceeding pro se, filed this motion to vacate, set aside or correct the sentence, pursuant to 28 U.S.C. § 2255. Upon consideration of the record, the court concludes that the government's motion to dismiss the § 2255 motion as untimely filed must be granted in part and denied in part.
Ramey pleaded guilty, pursuant to a written plea agreement, to distributing 5 grams or more of crack cocaine and, on March 8, 2010, the court sentenced him to 84 months in prison. After the court entered judgment against Ramey on March 11, 2010, the court received no communication from him for over a year. In July of 2011, Ramey wrote to the court, requesting a reduction in the payment schedule toward his restitution. He made no mention of a pending appeal from his conviction. Then, on December 5, 2011, the court received Ramey's notice of appeal, dated March 15, 2010, but postmarked November 28, 2011, from El Paso, Texas. The court processed the notice in the usual manner and transmitted the record to the United States Court of Appeals for the Fourth Circuit.
The government moved to dismiss Ramey's appeal as untimely, and Ramey moved for remand to the district court for determination of the date he properly delivered the notice of appeal to prison officials for mailing. Fed. R. App. P. 4(c)(1); Houston v. Lack , 487 U.S. 266 (1988) (finding that prisoner's court pleading is considered filed when delivered to prison authorities for mailing to the court). The court of appeals granted Ramey's motion and remanded the case for the limited purpose of allowing this court to determine whether Ramey's notice of appeal was timely filed. United States v. Ramey, No. 11-5140 (4th Cir. Feb. 21, 2012).
The court directed Ramey to provide additional information concerning the date when he delivered his notice of appeal to prison authorities. Ramey, through his appellate counsel, submitted his sworn declaration, stating that he had placed the notice of appeal in the Roanoke City Jail's inmate mail system on March 15, 2010, just four days after he was sentenced. Ramey stated that he did not know the normal processing time for a criminal appeal, so did not become concerned about his appeal outcome until more than a year had passed. At this point, Ramey stated, he became concerned that the court might never have received his original notice of appeal. He states that he prepared a second copy of his notice of appeal and mailed it to the court in December of 2011. The government argued that Ramey's explanation was not credible and so did not support a finding that he had filed a timely notice of appeal. To resolve this credibility issue, the court scheduled the matter for an evidentiary hearing.
At the start of the evidentiary hearing on June 29, 2012, counsel announced that Ramey intended to withdraw his notice of appeal. Finding no need for the hearing, court was recessed. On July 12, 2012, the Fourth Circuit granted Ramey's motion for voluntary dismissal of his appeal.
On June 29, 2012, Ramey, by counsel, filed a motion for reduction of sentence under 18 U.S.C. § 3582(c) and Amendment 750 to the federal sentencing guideline for crack cocaine offenses. The government objected to any reduction, but the court ultimately granted Ramey's motion. By memorandum opinion and order entered March 7, 2013, the court reduced Ramey's sentence from 84 months to 70 months in prison.
Ramey signed and dated his § 2255 motion on May 20, 2013, and moved to seal the motion's contents for security reasons. The court denied his motion to seal, but granted him an opportunity to submit a more detailed affidavit under seal, which he did. The government has moved for dismissal of the § 2255 motion as untimely filed, and Ramey has responded, making the matter ripe for disposition.
A person convicted of a federal offense has one year to file a § 2255 motion, starting from the latest of the following dates:
(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 ...