United States District Court, S.D. Indiana, Indianapolis Division
LELAND J. CORNELOUS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255, DENYING MOTION FOR A REDUCED
SENTENCE UNDER 18 U.S.C. § 3582, AND
DENYING A CERTIFICATE OF APPEALABILITY
WILLIAM T. LAWRENCE, SENIOR JUDGE
Section 2255 Motion
reasons explained in this Order, the motion of Leland J.
Cornelous for relief pursuant to 28 U.S.C. § 2255 must
be denied and this action
dismissed. In addition, the Court finds that
a certificate of appealability should not issue.
Cornelous initially filed a motion for relief pursuant to 28
U.S.C. § 2255 arguing that, under Johnson v. United
States, 135 S.Ct. 2551 (2015), his sentence was
unconstitutional. Dkt. No. 2. Mr. Cornelous later amended his
§ 2255 motion to acknowledge that he was not entitled to
relief under Johnson or Dean v. United
States, 137 S.Ct. 1170 (2017). Dkt. No. 10 at 1. Rather,
Mr. Cornelous argued that his charge for armed bank robbery
was illegal because he used a toy gun when robbing a bank,
and not a firearm or a dangerous weapon. In response, the
United States argues that Mr. Cornelous' § 2555
motion is untimely, without merit, and should be dismissed.
Dkt. No. 19. Mr. Cornelous did not file a reply, and the time
to do so has passed.
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). That period
(1) the date on which the judgment of conviction becomes
(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
(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). 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).
Cornelous' judgment of conviction was entered on the
clerk's docket on February 2, 2005. United States v.
Cornelous, 1:04-cr-00094-WTL-DKL-1, (S.D. Ind.)
(hereinafter “Crim. Dkt.”), Dkt. No. 1 at 4. Mr.
Cornelous did not appeal. His conviction therefore became
final on the last day he could have filed a notice of appeal,
February 16, 2005. See Fed. R. App. P. 4(b)(1)(A)(i)
(defendant's notice of appeal must be filed within 14
days after the entry of the judgment). The last day he could
have filed a timely § 2255 motion was one year later,
February 16, 2006. Instead, Mr. Cornelous filed his §
2255 motion on July 19, 2016, more than ten years too late.
Mr. Cornelous has presented no argument to support the
equitable tolling of this statute of limitations.
these circumstances, the habeas petition is now
dismissed as untimely. Judgment consistent
with this Order shall now issue and the Clerk shall
docket a copy of this Entry in No.
1:04-cr-00094-WTL-DKL-1. The motion to vacate (Crim.
Dkt. 6) shall also be terminated in the
underlying criminal action.
Section 3582 Motion
Cornelous has asserted that he is entitled to early release
under 18 U.S.C. § 3582 because his mother has blood
cancer and requested a “compassionate release” by