United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
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.
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
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.)
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.
SECTION 2255 MOTION
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.
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
(1) the date on which the judgment of conviction becomes
(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
(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