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United States v. James

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

July 8, 2019

UNITED STATES OF AMERICA
v.
KEVIN ATHOL JAMES, Petitioner.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         Kevin Athol James, a federal inmate proceeding by counsel, brings this PETITION FOR RELIEF PER 28 U.S.C.A. § 2255 OR PER WRIT OF ERROR CORAM NOBIS ("§ 2255 Motion," and "Petition for Writ of Error Coram Nobis," ECF No. 47). The Government has responded, asserting that James's § 2255 Motion is untimely and he lacks entitlement to relief through a Petition for Writ of Error Coram Nobis. (ECF No. 50.) For the reasons set forth below, the § 2255 Motion will be dismissed as barred by the statute of limitations and his attempt to bring a Petition for Writ of Error Coram Nobis will be denied.

         I. PROCEDURAL HISTORY

         On November 4, 2002, the Court entered judgment against James and sentenced him to 57 months of imprisonment for his conviction of conspiracy to distribute more than 100 kilograms of marijuana. (ECF No. 27, at 1-2.) James did not appeal. James was released from criminal custody in 2006. James apparently has been detained by the United States Customs and Border Protection since March of 2017. (ECF No. 47, ¶¶ 4-5.J[1]

         On January 10, 2018, counsel for James filed this § 2255 Motion/Petition for Writ of Error Coram Nobis. James contends that his counsel rendered ineffective assistance because he failed to inform him of the immigration consequences of his guilty plea, namely, that he would face mandatory deportation. (Id. ¶¶ 8-9.)

         "A habeas corpus petition is moot when it no longer presents a case or controversy under Article III, § 2, of the Constitution." Aragon v. Shanks, 144 F.3d 690, 691 (10th Cir. 1998) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)). No. cause or controversy exists unless the petitioner has suffered an actual injury that can "be redressed by a favorable judicial decision." Spencer, 523 U.S. at 7 (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990)). As James has served his sentence and completed his term of supervised release, it is doubtful that he may bring this challenge pursuant to section 2255. See United States v. Major, 693 Fed.Appx. 267, 268 (4th Cir. 2017) (citing United States v. Doe, 810 F.3d 132, 143 (3d Cir. 2015)); Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995) (explaining that "in custody" requirement for the purposes of § 2255 extends through period of supervised release). Nevertheless, even if the § 2255 Motion is not moot, as discussed below, any such motion would be untimely.

         II. SECTION 2255 MOTION

         Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2255 to establish a one-year period of limitation for the filing of a § 2255 Motion.

         Specifically, 28 U.S.C. § 2255(f) now reads:

(f) A 1-year period of limitation shall apply to a 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 the ...

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