Fadayiro v. U.S.

30 F.Supp.2d 772

Prince Adesegun FADAYIRO, Petitioner, v. UNITED STATES, Respondent.

No. CIV.A. 98-4587 (AJL).

No. CRIM.A. 92-148-02 (AJL).

United States District Court, D. New Jersey.

November 12, 1998.

Prince Adesegun Fadayiro, Pekin, IL, pro se.

Paula Dow, Assistant United States Attorney, Newark, NJ, for Respondent.

OPINION

LECHNER, District Judge.

This is an action brought by the pro se petitioner, Prince Adesegun Fadayiro ("Fadayiro"), an inmate at the Federal Correctional Institution in Pekin, Illinois, against the respondent, United States (the "Government"). Currently before the court is the petition of Fadayiro for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255 (the "Petition"), and a motion to toll the statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2255, Pub.L. No. 104-132, tit. I § 105(2), 110 Stat. 1220 (24 April 1996) (the "AEDPA") for 28 U.S.C. § 2255 (the "Motion").¹

For the reasons set forth below, the Petition is dismissed. Because the Petition is dismissed, the Motion is moot.

Facts

In 1992, a federal grand jury indicted Fadayiro and eight other defendants in a fourcount, second superceding indictment (the "Indictment"). Fadayiro was named in count one ("Count One") and count two ("Count Two") of the Indictment. Count One of the Indictment charged Fadayiro with conspiracy to import more than three kilograms of heroin in violation of 21 U.S.C. §§ 952(a), 960 and 963. See Indictment. Count Two of the Indictment charged Fadayiro with conspiracy to possess with intent to distribute more than three kilograms of heroine in violation of 21 U.S.C. §§ 841(a)(1) and 846. See id.

On 3 November 1995, Fadayiro was convicted by jury verdict on Counts One and Two. On 25 April 1996, Fadayiro was sentenced to 141 months imprisonment, to be followed by a five-year term of supervised release, a fine in the amount of $4,000 and a special assessment of $100. A judgment of conviction and sentence (the "Judgment") was entered on that day.

On 6 May 1996, Fadayiro filed an appeal (the "Appeal") of the Judgment. See Notice of Appeal. On 24 April 1997, in a memorandum opinion, the Third Circuit affirmed the Judgment and denied the Appeal in all respects. See United States v. Fadayiro, App. No. 96-5290, 1997 WL 228720 (3d Cir. Apr. 24, 1997). On or about 3 June 1997, the Third Circuit denied a petition for rehearing.

Fadayiro then filed a petition for a writ of certiorari with the Supreme Court, which was denied on 6 October 1997. See Petition at 3; Motion at ¶ 2.

On 5 October 1998, Fadayiro filed the Petition. In the Petition, Fadayiro raises four grounds why the Judgment should be vacated:

Ground one: Denial of effective assistance of counsel and a right to trial counsel....

Ground two: Conviction obtained by a violation of constitutional [right to a] speedy trial....

Ground three: Sentence imposed by a violation of Due Process Clause and Establishment Clause...

Ground four: Denial of effective appellate review and a right to appellate counsel....

See Petition at 5-6. Significantly, the Petition does not assert that the Government prevented him from filing the Petition at an earlier date or that the Supreme Court has recognized a new right that is retroactively applicable to this case or that new facts were discovered since the entry of the Judgment.

Discussion

A. Standard of Review for Pro Se Submissions

Pro se submissions, "`however inartfully pleaded,' must be held to `less stringent standards than formal pleadings drafted by lawyers' and can only be dismissed for failure to state a claim if it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), reh'g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977); see also Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652, reh'g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir.1996); United States v. Day, 969 F.2d 39, 42 (3d Cir.1992) (holding pro se petition cannot be held to same standard as pleadings drafted by attorneys); Lewis v. Attorney General of United States, 878 F.2d 714, 722 (1989).

When receiving a pro se submission from a habeas petitioner, the habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir.1998); Lewis, 878 F.2d at 721; United States v. Brierley, 414 F.2d 552, 555 (3d Cir.1969)("We should recognize that a habeas corpus petition prepared by a prisoner without the aid of counsel may be inartfully drawn and should therefore be read `with a measure of tolerance.' It is the policy of courts to give a liberal construction to pro se habeas petitions.") (citations omitted) cert. denied, 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1970); see also Neitzke v. Williams, 490 U.S. 319, 330 n. 9, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Haines, 404 U.S. at 520, 92 S.Ct. 594; Roman v. Jeffes, 904 F.2d 192, 197 (3d Cir.1990).

B. Petition Pursuant to 28 U.S.C. § 2255

1. Statute of Limitations

The AEDPA amended Section 2255 of Title 28 of the United States Code ("Section 2255") to include, among other things, a one-year limitations period for filing habeas petitions. See 28 U.S.C. § 2255; see also Burns v. Morton, 134 F.3d 109, 111-12 (3d Cir. 1998); United States v. Hatcher, No. 94-173-1, 1997 WL 698488, at *1 (E.D.Pa. Nov.7, 1997); Kapral v. United States, 973 F.Supp. 495, 497 (D.N.J.1997).

Prior to 24 April 1996, the effective date of the AEDPA,² federal prisoners were given virtually unlimited time in which to file habeas petitions after their convictions became final. See United States v. Benson, No. 97-4783, 1998 WL 23168, at *1 (E.D.Pa. Jan.6, 1998); Hatcher, 1997 WL 698488, at *1. Following the enactment of the AEDPA, however, federal prisoners must file their habeas petitions within one year from the latest of one of the following four events:

(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 exercise of due diligence....

28 U.S.C. § 2255 (emphasis added); Hatcher, 1997 WL 698488, at *1.

Concerned with the retroactive effect of the AEDPA, the Third Circuit has stated habeas petitions filed before the effective date of the AEDPA — 24 April 1996 — "may not be dismissed for failure to comply with § 2255's one-year period of limitations." Burns, 134 F.3d at 111-12. Petitions filed on or after 24 April 1997, however, must comply with the one-year limitations period. See Dietsch v. United States, 2 F.Supp.2d 627, 635 (D.N.J.1998); Turner, 994 F.Supp. 631, 633; Hatcher, 1997 WL 698488, at *2; Kapral, 973 F.Supp. at 497.

Because of additional concerns about the retroactive effect of the AEDPA, this Circuit has also stated that prisoners whose convictions became "final" before the effective date of the AEDPA had until 24 April 1997 to file petitions for relief. See United States v. Urrutia, No. 97-7051, 1997 WL 628217 (3d Cir. Sept. 15, 1997); Benson, 1998 WL 23168, at *2; United States v. Angel, Nos. 98-CV-1392, 94-CR-189, 1998 WL 181938, at *2 (E.D.Pa. Apr. 15, 1998); Hatcher, 1997 WL 698488, at *2. Prisoners whose convictions became "final" on or after the effective date of the AEDPA must file their petitions within one year of their convictions becoming "final." See 28 U.S.C. § 2255; Kapral, 973 F.Supp. at 497.

In the instant case, as mentioned, Fadayiro was convicted on 3 November 1995 and sentenced on 25 April 1996. The conviction of Fadayiro was not "final," however, until after the effective date of the AEDPA. As a result, Fadayiro was required to file the Petition within the one-year limitations period established by the AEDPA. See Kapral, 973 F.Supp. at 497.

In the Motion, Fadayiro contends the limitations period expired on 6 October 1998, "[one] year from the date of [c]ertiorari denied." See Motion at ¶ 4. Without directly addressing the limitations period of Section 2255, Fadayiro automatically assumes the denial of certiorari is the triggering date on which the conviction becomes "final" under Section 2255. See id. As discussed below, this assumption is wrong.

Neither the AEDPA nor Section 2255 defines when a judgment of conviction becomes "final." See 28 U.S.C. § 2255; see also Kapral, 973 F.Supp. at 497; United States v. Dorsey, 988 F.Supp. 917, 918 (D.Md.1998). To date, the definition of "finality" has not been addressed by the Third Circuit, and there appears to be no consensus in the case law. Indeed, courts have identified several possible dates on which a judgment of conviction may be deemed "final" for purposes of Section 2255. These dates include the date on which the trial court enters a judgment and sentence, the date after which the petitioner could no longer file an appeal with the Circuit court, if no appeal was filed, the date of the decision of the Circuit court, if an appeal was filed, and the date after which the petitioner could no longer petition the Supreme Court for a writ of certiorari or denial of such petition. See Dietsch, 2 F.Supp.2d at 635; Kapral, 973 F.Supp. at 497 (citing Clarke v. United States, 955 F.Supp. 593, 595 (E.D.Va.199...