United States District Court, E.D. Virginia, Norfolk Division
Decided: November 19, 2014.
Ricky Lee Tyndall, Petitioner (2:13cv574), Pro se.
For USA, Plaintiff (2:10-cr-00200-RBS-DEM): Cameron Michael Rountree, LEAD ATTORNEY, Williams Mullen (Norfolk), Norfolk, VA; Elizabeth M. Yusi, LEAD ATTORNEY, Elizabeth Bartlett Fitzwater, United States Attorney's Office - Norfolk, Norfolk, VA.
REBECCA BEACH SMITH, CHIEF UNITED STATES DISTRICT JUDGE.
This matter comes before the court on the " Memorandum of Law in Support of Statutory Remedy of Habeas Corpus Under 28 U.S.C. § 2255" (" § 2255 Memorandum" ), filed pro se on August 7, 2014, by the Petitioner, Ricky Lee Tyndall, ECF No. 137;  and the Petitioner's " Motion for Leave to File out of Time Notice of Appeal" (" Motion for Untimely Appeal" ), filed pro se on September 11, 2014. ECF No. 142. The Petitioner filed the Motion for Untimely Appeal subject to defect, for failure to serve the United States Attorney, which defect the Petitioner failed to correct within thirty days of the court's Order Striking Pleadings of September 17, 2014. See ECF No. 143. Accordingly, the Petitioner's Motion for Untimely Appeal was stricken from the record. However, in the interests of justice, so that this matter can be fully addressed, the court hereby
LIFTS the defect, and DIRECTS the Clerk to file the Motion for Untimely Appeal and to forward a copy to the United States Attorney at Norfolk. For the reasons set forth below, the court DENIES the Motion for Untimely Appeal and DISMISSES the § 2255 Memorandum as a successive habeas corpus petition.
I. Factual and Procedural History
The Petitioner filed a Motion Under 28 U.S.C. § 2255(e) to Vacate and Correct Sentence (" Original Motion" ) on October 21, 2013. ECF No. 125. By Memorandum Order of October 29, 2013, the court denied the Original Motion as without merit. Mem. Order at 6, ECF No. 126. In the Memorandum Order, the Petitioner was advised of his right to appeal, id. at 7, but he did not do so. The Clerk forwarded copies of the court's Memorandum Order to the Petitioner on October 29, 2013. See ECF Nos. 126 & 127. The Petitioner's copy was not returned to the court as undeliverable, and the Clerk used the address on record, which the Clerk ascertained was the correct address at that time and still is the correct address.
On August 7, 2014, more than nine months after the court denied the Original Motion, the Petitioner filed the instant § 2255 Memorandum, in which he asserts that " [a]s of this 4th day of August, 2014, there has not been any action of [sic] the motion." § 2255 Mem. at 1. On August 11, 2014, the court advised the Petitioner that the court had denied his Original Motion on October 29, 2013, and the Clerk forwarded to the Petitioner another copy of the court's October 29, 2013, Final Order. See Order, ECF No. 139. On September 11, 2014, the court ordered the Petitioner to Show Cause why it should not construe the § 2255 Memorandum as a successive petition. Show Cause Order at 5, ECF No. 141. The court further advised the Petitioner that if he wished to claim that the § 2255 Memorandum was not successive, he had to file a sworn statement, under penalty of perjury, that he had never received a copy of the court's Memorandum Order of October 29, 2013, or, if he did receive it, when he received it. Id.
On September 29, 2014, the Petitioner filed an " Affidavit and Answer to Show Cause Order" (" Affidavit and Answer" ). ECF No. 144. In his Affidavit and Answer, the Petitioner declares, under penalty of perjury, that " I did not receive any type of responses from my motion/petition until and after I submitted my Memorandum of Law in Support of Statutory Remedy of Habeas Corpus under 28 U.S.C. § 2255 in August of 2014." Aff. & Answer at 3. The Petitioner further states that " I did not receive the court's decision denying my motion/petition under 28 U.S.C. § 2255(e) until August of 2014." Id. While the Petitioner did not specify in his Affidavit and Answer the exact date of receipt in August, he did so specify the date of receipt in his Motion for Untimely Appeal, as August 18, 2014. Mot. for Untimely Appeal at 1 (" On August 18, 2014, I received . . . copy of the Court's Order dated October 28, 2013 . . . ." ). The Petitioner filed the Motion for Untimely Appeal on September 11, 2014.
A. Motion for Untimely Appeal