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Dixon v. United States

United States District Court, S.D. Indiana, Indianapolis Division

July 2, 2018

JEROME DIXON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          TANYA WALTON PRATT, JUDGE

         I. The 28 U.S.C. § 2255 Motion

         A. Background

         On 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. 23.

         On June 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.

         On July 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.

         The 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.

         Mr. Dixon filed his motion for relief pursuant to 28 U.S.C. § 2255 on June 5, 2017, alleging he received ineffective assistance of counsel.

         B. Discussion

         A 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.”).

         1. Mr. Dixon's § 2255 Motion is Time Barred:

         As 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.

         Mr. 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.

         Moreover, 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 ...


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