United States District Court, E.D. Kentucky, Southern Division, London
ROBERT E. WIER, Magistrate Judge.
On February 11, 2015,  Defendant/Movant Darlene Smith filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. See DE #105 (Motion). The Court conducted an initial review of the motion and perceived it to be untimely. However, in order to give Smith a fair opportunity to respond, the Court ordered briefing on the issue of timeliness/equitable tolling. DE #106 (Order). Smith did not respond. The United States responded and seeks dismissal, alleging that the motion is untimely and that equitable tolling does not apply on this record. DE #109 (Response). Having reviewed the filings under the applicable standards, the Court RECOMMENDS that the District Court DISMISS the time-barred petition WITH PREJUDICE and DENY a Certificate of Appealability.
I. STATUTE OF LIMITATIONS
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became effective. Section 2255 provides in relevant part:
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 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(f).
Judge Van Tatenhove entered judgment on July 16, 2012. DE #76 (Judgment). Smith appealed, and the Sixth Circuit affirmed her conviction on November 6, 2013. See DE #96. Smith did not petition the Supreme Court for a writ of certiorari. "When a federal criminal defendant takes a direct appeal to the court of appeals, [her] judgment of conviction becomes final for § 2255 purposes upon the expiration of the 90-day period in which the defendant could have petitioned for certiorari to the Supreme Court, even when no certiorari petition has been filed." Sanchez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004) (citing Clay v. United States, 123 S.Ct. 1072, 1079 (2003)). The ninety-day period to petition for certiorari runs from the date of the court of appeals's judgment or order, not from the date of mandate issuance. See Clay, 123 S.Ct. at 1076 (citing Sup.Ct. R. 13(3)). Accordingly, Smith had ninety days from November 6, 2013, or until February 4, 2014, to petition the Supreme Court for a writ of certiorari. She then, per the AEDPA, had one year from February 4, 2014, to file a § 2255 motion. Smith did not file her motion until February 11, 2015, thereby missing the filing deadline.
Smith argues her motion "should be construed as timely filed" because she earlier had petitioned to join Roscoe Smith's (her husband and co-defendant's) § 2255 motion. DE #105, at 6. The record suggests that Roscoe Smith signed both Smiths' names to a single § 2255 motion (although with Darlene Smith's apparent permission). See DE ##99 (11/25/14 Roscoe Smith § 2255 motion); 100 (12/23/14 Judge Smith Order analyzing the joint signature issue and treating DE #99 as solely Roscoe Smith's motion); 101 (1/13/15 Darlene Smith statement) ("I, Darlene Smith, gave Roscoe Dean Smith permission to sign my name to our 2255 on November 1, 2014."); 102 (1/26/15 Judge Smith Order stating that if Darlene Smith "intends to proceed with a § 2255 Motion, she should file a properly signed and verified Motion on her own behalf."). Darlene Smith did not appeal from or object to Judge Smith's December order (which rejected the § 2255 motion as encompassing Darlene), and she did not appeal from or object to Judge Smith's January order (which persisted in the prior ruling because Darlene did not establish "next friend" status for the prior signer). Darlene Smith knew, as early as December 2014, that the Court deemed her not to have filed a pending § 2255 motion. The Court further notes that, per § 2255 Rule 2(d), one motion cannot impeach more than one Judgment.
Smith makes no credible attempt to avoid § 2255(f). She filed more than one year after the judgment became final. There is no mechanism in these circumstances to construe an untimely motion as timely, as Smith requests, due to Movant delay, lack of diligence, or error. See, e.g., Facundo v. United States, No. 1:10-CV-78, 2010 WL 2245992, at *4 (W.D. N.C. June 2, 2010) ("Petitioner's [m]otion cannot be construed as timely filed pursuant to any of the provisions of the AEDPA."). DE #99 is Roscoe Smith's § 2255 motion alone, and the Court cannot ascribe its filing date to Darlene Smith's separate motion. Even when notified that the Court did not treat DE #99 as her motion, Smith did not timely act to submit her own motion, instead waiting nearly two months to file. Smith's motion is time-barred under § ...