United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
WALTON PRATT, JUDGE
The 28 U.S.C. § 2255 Motion
October 15, 2014, Jerome Dixon and a co-defendant were
charged in a two count indictment. In count one, Mr. Dixon
was charged with conspiracy to possess with the intent to
distribute and to distribute 1, 000 grams or more of heroin,
500 grams or more of cocaine, and 28 grams or more of cocaine
base, all in violation of 21 U.S.C. §§ 841(a)(1)
and 846. In count two, Mr. Dixon was charged with possession
with the intent to distribute approximately 1, 000 grams or
more of heroin, 500 grams or more of cocaine, and 28 grams or
more of cocaine base in violation of 21 U.S.C. §
841(a)(1). See United States v. Dixon,
1:14-cr-209-TWP-TAB-02 (herein after Crim Dkt.), Crim. Dkt.
2, 2015, the United States filed an Information pursuant to
21 U.S.C. § 851(a)(1), which notified the Court that Mr.
Dixon had a prior felony controlled substance conviction.
Crim. Dkt. 86.
28, 2015, Mr. Dixon entered a plea agreement that provided he
would plead guilty to count one and the United States would
dismiss count two. Crim. Dkt. 139. Pursuant to the plea,
sentencing was left to the Court's discretion. Mr. Dixon
agreed that if the Court accepted the plea agreement and
sentenced him in accordance with it, he would waive his right
to appeal or otherwise challenge his conviction.
Id., p. 6. He also agreed not to contest, or seek to
modify, his conviction or sentence or the manner in which
either was determined in any collateral attack, including an
action under 28 U.S.C. § 2255. Id. The §
2255 waiver did not include claims that Mr. Dixon received
ineffective of assistance of counsel in the negotiation of
the plea or plea agreement. Id.
Court accepted Mr. Dixon's guilty plea. Crim. Dkt. 137.
On November 5, 2015, the Court sentenced Mr. Dixon to 120
months' incarceration followed by five years'
supervised release. Crim. Dkt. 163, 171. Judgment was entered
on November 16, 2015. Crim. Dkt. 171.
Dixon filed his motion for relief pursuant to 28 U.S.C.
§ 2255 on June 5, 2017, alleging he received ineffective
assistance of counsel.
motion pursuant to 28 U.S.C. § 2255(a) is the
presumptive means by which a federal prisoner can challenge
his conviction or sentence. See Davis v. United
States, 417 U.S. 333, 343 (1974). The Antiterrorism and
Effective Death Penalty Act of 1996 establishes a one-year
statute of limitations period for § 2255 motions. 28
U.S.C. § 2255(f). For purposes of § 2255(f)(1),
that period runs from “the date on which the judgment
of conviction becomes final.” A judgment of conviction
becomes final when the conviction is affirmed on direct
review or when the time for perfecting an appeal expires.
Clay v. United States, 537 U.S. 522, 527 (2003)
(“Finality attaches when [the United States Supreme
Court] affirms a conviction on the merits on direct review or
denies a petition for a writ of certiorari, or when the time
for filing a certiorari petition expires.”).
Mr. Dixon's § 2255 Motion is Time Barred:
noted, Mr. Dixon's judgment of conviction was entered on
the record on November 16, 2015. Crim. Dkt. 171. However, Mr.
Dixon did not file an appeal. The last day he could have
filed an appeal was November 30, 2015. See Federal Rules
of Appellate Procedure Rule 4(b). This was the date his
conviction became final and the statute of limitations began
to run from that date. Pursuant to 28 U.S.C. §
2255(f)(1), Mr. Dixon then had one year in which to file any
challenge under 28 U.S.C. § 2255(a). Further, Mr.
Dixon's situation does not fall under any of the
remaining three timeliness provisions set forth in 28 U.S.C.
§ 2255. The statute of limitations thus expired one year
later on November 30, 2016.
Dixon's § 2255 motion, however, was not signed and
placed in the prison mail system until May 29, 2017. Dkt. 1,
p. 12. It is considered to have been filed on that date, but
this date was 6 months after the statute of limitations
expired. The petitioner has not argued otherwise but contends
that he was not provided the sentencing transcripts until
July 2016 so he was not able to discover his claim of
ineffective assistance of counsel. Dkt. 1, p. 11. However,
Mr. Dixon's deadline to file a § 2255 was not until
November 30, 2016. Thus, he had at least four months to
discover any alleged errors in sentencing.
Mr. Dixon does not argue that he is entitled to equitable
tolling, which is reserved for “extraordinary
circumstances far beyond the litigant's control that
prevented timely ...