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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MELVIN JERIAL JORDAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

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Case No. C05-1471-MJP-JPD

REPORT AND RECOMMENDATION

INTRODUCTION AND SUMMARY CONCLUSION

Petitioner Melvin Jerial Jordan is an inmate at the Federal Correctional Institution in

Lompoc, California who has filed a “request for relief” pursuant to 18 U.S.C. §§ 3742(a)(1)

and (a)(2) that seeks to correct an alleged misapplication of the United States Sentencing

Guidelines in connection with his 2002 federal sentence. Respondent has filed a response

opposing the request. Following a careful review of the parties’ pleadings, supporting

documents, and the record, the Court recommends that petitioner’s request be denied. 

FACTS

On May 20, 2002, petitioner entered into a plea agreement in which he pleaded guilty

to conspiracy to distribute marijuana and conspiracy to engage in money laundering. Case No.

CR02-51, Dkt. Nos. 48, 61. On May 15, 2003, petitioner was sentenced to 110 months in

prison, followed by five years of supervised release. Dkt. Nos. 106-07. Petitioner did not

appeal his sentence.

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 On August 17, 2005, petitioner filed a “request for relief pursuant to 18 U.S.C. §

3742(a)(1) (2).” Case No. C05-1471, Dkt. No. 1. Relying upon United States v. Buter, 229

F.3d 1077 (11th Cir. 2000), he appears to argue that the Court misapplied the United States

Sentencing Guidelines by effectively double-counting prior sentences that ran concurrently. 

Dkt. No. 1. Petitioner argues that, had the Court not separately counted those sentences, his

current sentence would be shorter. Id. 

Petitioner, however, is not entitled to relief under 18 U.S.C. §§ 3742(a)(1) and (a)(2). 

Under those provisions “A defendant may file a notice of appeal in the district court for review

of an otherwise final sentence if the sentence . . . was imposed in violation of law; [or] . . . was

imposed as a result of an incorrect application of the sentencing guidelines . . . .” 18 U.S.C. §§

3742(a)(1) and (a)(2). By its terms, this provision does not grant the district court jurisdiction

to review petitioner’s final sentence. See United States v. Auman, 8 F.3d 1268, 1271 (8th Cir.

1993). Rather, 28 U.S.C. § 2255 is generally considered to be the exclusive method by which

prisoners may challenge the legality of a federal sentence in district court. Ivy v. Pontesso, 328

F.3d 1057, 1059 (9th Cir. 2003) (noting that 28 U.S.C. § 2241 is proper in certain

circumstances) (internal citations omitted). Thus, the Court lacks the jurisdiction under 18

U.S.C. §§ 3742(a)(1) and (a)(2) to consider petitioner’s request. 

Although the Court may recharacterize petitioner’s request as a § 2255 motion, such a

recharacterization is inappropriate because the motion would be barred by the statute of

limitations. A one-year statute of limitations applies to motions brought pursuant to 28 U.S.C

§ 2255. That deadline runs from the latest of “the date on which the judgment of conviction

becomes final; [or] . . . 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. . . .” 28 U.S.C. § 2255 ¶ 6. 

In this case, petitioner’s judgment and sentence were issued on May 15, 2003, and he

filed no direct appeal. Case No. CR02-51, Dkt. Nos. 106-107. His conviction therefore

became final ten days later, on or about May 29, 2003. Fed. R. App. P. 4; United States v.

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Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (indicating that convictions become final ten

days after issuance of judgment and sentence for petitioners who file no direct appeal). 

Petitioner’s deadline for filing a § 2255 motion therefore expired on or about May 29, 2004. 

The Court, however, did not receive petitioner’s request until August 17, 2005, more than a

year after the deadline had passed. Additionally, the Eleventh Circuit case upon which

petitioner relies, United States v. Buter, is not a Supreme Court case and is therefore not

appropriate for calculating the statute of limitations provision of ¶ 6(3). See Dodd v. United

States, 125 S. Ct. 2478, 2481-82 (2005) (noting that calculation of deadlines under ¶ 6(3)

requires reference to decisions of the Supreme Court). Thus, even if the Court were to

recharacterize petitioner’s request as a § 2255 motion, it would be denied as untimely.

CONCLUSION

For the reasons set forth above, petitioner’s request for relief should be denied. A

proposed order accompanies this Report and Recommendation. 

DATED this 24th day of February, 2006.AJAMES P. DONOHUE

United States Magistrate Judge 

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