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Gay v. United States

United States District Court, E.D. Virginia, Norfolk Division

March 13, 2015

BRIAN GAY, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant.

AMENDED MEMORANDUM OPINION AND ORDER

RAYMOND A. JACKSON, District Judge.

Before the Court is pro se litigant Brian Gay ("Petitioner")'s Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255 ("Petition"). The Court previously granted Petitioner's Motion for an Extension of Time to File the Petition for good cause and ordered Petitioner to file the Petition with the Clerk of this Court no later than May 1, 2014. See Am. Order, Feb. 25, 2014, ECF No. 100. However, Petitioner filed the Petition on September 17, 2014. ECF No. 107. The Court concludes that the Petition is untimely because of: (1) the statute of limitations of § 2255 and (2) the Order granting an Extension for Enlargement of Time to File the Petition. Because the Petitioner filed one hundred thirty-eight (138) days after May 1, 2014 without showing sufficient reason to toll the statute of limitations, the Court finds that the Petition is time-barred. Therefore, the Petition is DISMISSED.

I. FACTUAL AND PROCEDURAL HISTORY

On June 22, 2011, Petitioner was indicted and subsequently charged with four counts of Mail Fraud in violation of 18 U.S.C. §§1341 and 2, one count of Wire Fraud in violation of 18 U.S.C. §§ 1343 and 2, four counts of Unlawful Monetary Transactions in violation of 18 U.S.C. 1957, and one count of False Statement in violation of 18 U.S.C. §§ 1001(a)(3) and 2. ECF No. 3. On January 27, 2012, Petitioner was found guilty on three counts of mail Fraud, one count of wire Fraud, four counts of Unlawful Monetary Transactions, and one count of False Statements. The court dismissed the fourth count of Mail Fraud and imposed a sentence of sixty (60) months of imprisonment for each of the remaining charges to beserved concurrently. The Court also ordered three (3) years of supervised release for each charge to run concurrently. ECF No. 69.

Petitioner filed a formal appeal with the United State Court of Appeals for the Fourth Circuiton February 6, 2012. ECF No. 73. That Court affirmed the convictions and sentences on December 31, 2012. ECF No. 93. Petitioner responded on January 27, 2014, by filing a Motion for Enlargement of Time to file a 28 U.S.C. § 2255 Petition. ECF No. 98. The Court granted this motion and ordered Petitioner to file the Petition no later than May 1, 2014. ECF No. 100. Petitioner failed to file the Petition by the May 1st deadline. Instead, Petitioner then filed two additional Motions for Enlargement of Time on April 28, 2014 and May 22, 2014. The Court denied both motions. ECF No. 103 and ECF No. 106. Petitioner filed the Petition on September 17, 2014.

The Petition raises three grounds. First, Petitioner claims ineffective assistance of counsel due to a lack of preparation demonstrated by repeated failures to, inter alia, (1) object to inadmissible testimony; (2) move to strike defective indictments; or (3) obtain proper jury instructions. Pet'r's Mot., 15-25. Second, Petitioner asserts his actual innocence because the Government failed to prove the elements necessary to convict on several charges including Count Two (Mail Fraud) and Count Ten (False Statements). Id. Finally, Petitioner contends that the sentence imposed was not authorized by law. Id.

II.LEGAL STANDARDS

In 1996, Congress successfully amended § 2255 petitions as part of the Anti-terrorism and Effective Death Penalty Act ("AEDPA"). See Pub. L. No. 104-132, Title I, § 105, 110 Stat. 1220. § 2255 now provides in pertinent part:

A 1-year period of limitation shall apply toa motion under this section. The limitation period shall run 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 ...

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