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Cornelous v. United States

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

October 26, 2018

LELAND J. CORNELOUS, Petitioner,
v.
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

          HON. WILLIAM T. LAWRENCE, SENIOR JUDGE

         I. Section 2255 Motion

         For the 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.

         Mr. 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.

         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). That period runs from:

(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(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).

         Mr. 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.

         Under 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.

         II. Section 3582 Motion

          Mr. 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 means ...


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