United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
THERESA CARROLL BUCHANAN, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Petitioner Anton Durrell
Harris' ("Harris") Motion to Stay Statute of
Limitations Due to Exigent Circumstances (Dkt. 254)
("Mot. to Stay"). Relatedly, Harris also has filed
a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Dkt. 252)
("Mot. to Vacate") and a Motion to Dismiss or
Withdraw Without Prejudice to Refile Motion to Vacate (Dkt.
253) ("Mot. to Withdraw"). On June 11, 2019, the
District Judge referred this matter to the undersigned. (Dkt.
256.) On June 20, 2019, the Government filed a Response in
Opposition to Harris' Motion to Stay Statute of
Limitations (Dkt. 258) ("Gov't Opp'n").
following reasons, the Court finds that Harris' Motion to
Stay Statute of Limitations be GRANTED IN PART and DENIED IN
PART and that Harris' Motion to Dismiss or Withdraw be
held in ABEYANCE.
PROCEDURAL AND FACTUAL BACKGROUND
18, 2017, a federal grand jury returned a forty-one (41)
count indictment charging Harris, along with three other
individuals, for participating in multiple armed robberies.
(Dkt. 18.) Specifically, Harris was charged with seventeen
counts, consisting of one (1) count of conspiracy to obstruct
commerce by robbery, six (6) counts of obstructing commerce
by robbery, six (6) counts of using, carrying, and
brandishing a firearm during and in relation to a crime of
violence, and four (4) counts of possessing a firearm after
having been convicted of a felony. (Id.) Harris
initially pleaded not guilty as to all seventeen counts at
his arraignment and demanded a jury trial. (Dkt. 28.)
January 16, 2018, on the eve of trial, Harris appeared before
the District Judge for a change of plea. (Dkt. 146.) Pursuant
to a plea agreement with the United States, Harris pleaded
guilty to Counts 27 and 28 of the indictment. (Id;
Dkt. 147 at 1.) Both counts charged Harris with using,
carrying, and brandishing a firearm during and in relation to
a crime of violence in violation of 18 U.S.C. §§
924(c) and 2. (Dkt. 147 at 1.)
31, 2018, Harris again appeared before the District Judge for
sentencing. (Dkt. 211.) The District Judge sentenced Harris
to 384 months of imprisonment. (Id.) The Court
entered Harris' judgment of conviction on that same day.
(Dkt. 214.) Harris did not commence a direct appeal of his
than a year later, on June 6, 2019, the Clerk of the Court
docketed three separate motions filed by Harris. However,
those filings all include different signature dates as well
Harris filed a Motion to Vacate under 28 U.S.C. § 2255
for ineffective assistance of counsel. The motion is signed
and dated as of May 1, 2019. (Mot. to Vacate at 9.) While not
quite legible, the envelope accompanying the motion appears
to have been postmarked on May 2, 2019. (Mot. to Vacate, Ex.
Harris filed a Motion to Dismiss or Withdraw Without
Prejudice to Refile Motion to Vacate. Harris also signed this
motion but did not specifically include a date near his
signature line. (Mot. to Withdraw at 3.) Nonetheless, Harris
did include a "Certificate of Service" section that
states he served the motion upon the Clerk on May 22, 2019 by
placing the motion in the possession of a corrections
officer. (Id.) The envelope includes a clearly
legible postmark of May 24, 2019. (Id., Ex. 1 at 1.)
Moreover, this filing also includes a certification from the
United States Penitentiary in Pollock, Louisiana ("USP
Pollock"), where Harris is currently incarcerated,
stating Harris' letter "was processed through
special mailing procedures" on May 24, 2019.
(Id., Ex. 1 at 2.)
and finally, Harris filed a Motion to Stay Statute of
Limitations Due to Exigent Circumstances. Again, the motion
includes Harris' signature without a corresponding date
but does include a certificate of service stating the motion
was served on the Clerk via a corrections officer on May 24,
2019. (Mot. to Stay at 4.) That filing also includes a
"Notice of Grounds for Relief Motion Under 28 U.S.C.
§ 2255 for Preservation Purposes," which includes a
certificate of service stating Harris served the "Notice
of Grounds" on the Clerk via a corrections officer on
May 24, 2019. (Id. at 7.) Additionally, the filing
contains a separate affidavit and certificate of service.
(Id. at 9-10.) On the face of the affidavit, Harris
states he served it on May 1, 2019. (Id. at 9.) On
the following certificate of service, Harris swears under the
penalty of perjury that he served his 2255 motion for
ineffective counsel on the Clerk on May 1, 2019.
(Id. at 10.) This filing includes a legible postmark
of May 28, 2019 and another "special mailing
procedures" certificate from USP Pollock stating the
letter was processed on May 28, 2019. (Id., Ex. 1.)
U.S.C. § 2255(f)(1)'s one-year limitation fast
approaching, Harris filed a slew of motions with this Court,
including a 2255 Motion to Vacate. Harris' 2255 Motion
mainly appears to request that the Court "reverse"
his conviction on the grounds of ineffective assistance of
counsel. (Mot. to Vacate at 1, 9.) Before reaching the merits
of Harris' claims, however, the Court must necessarily
address the timeliness of Harris' 2255 motion as well as
Harris' other motions.
Timeliness of ...