IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

:

UNITED STATES OF AMERICA :

 :

v. : CRIMINAL NO. 04-489

:

NORVEL VAS, :

Defendant. :

__________________________________________:

MEMORANDUM OPINION AND ORDER

RUFE, J. October 13th, 2009

Defendant Norvel Vas was convicted of possession of a firearm by a convicted felon,

an offense codified in 18 U.S.C. § 922(g)(1), by this Court on February 8, 2007. The issue presently 1

before the Court is Defendant’s Petition for “Equitable Tolling” Due to Appellant’s Counsel or Any

Court Failure to Notify Appellant of the Denial of Petition for Writ of Certiorari from the U.S.

Supreme Court. In this Petition, Defendant asks for an extension of the one-year period in which 2

to file a collateral attack of his conviction under 28 U.S.C. § 2255. Upon consideration of 3

Defendant’s Petition and the Government’s Opposition, the Petition will be DISMISSED, as the 4

Court lacks authority to consider such a request for extension of time when no § 2255 motion has

been filed. 

18 U.S.C. § 922(g)(1) (2005).

1

Doc. No. 201.

2

28 U.S.C. § 2255 (2008).

3

Doc. No. 202.

4

Case 2:04-cr-00489-CMR Document 203 Filed 10/13/09 Page 1 of 4
I. FACTUAL AND PROCEDURAL BACKGROUND

As we write for the parties, our recitation of the facts is abbreviated. The history of

this matter is well known to the parties and codified in United States v. Vas, 2007 U.S. Dist. LEXIS

40461 (D. Pa. June 4, 2007) and United States v. Vas, 313 Fed. Appx. 559 (3d Cir. 2009). This

criminal matter commenced on August 24, 2004, upon the return of a one-count indictment by the

grand jury charging Defendant with a violation of 18 U.S.C. § 922(g)(1). After a trial by jury on the

charged indictment, in which Defendant represented himself, with stand-by counsel appointed

throughout the trial, the Defendant was adjudged guilty.

Defendant was thereaftersentenced onMay9, 2007 to 120 months imprisonment (the

mandatory minimum sentence), three (3) years supervised release, and a $100 special assessment. 

He appealed his conviction in the Third Circuit Court of Appeals, and the judgment of this Court was

affirmed on January 29, 2009. Defendant filed a petition for writ of certiorari in the United States

Supreme Court. The Supreme Court denied the petition on June 1, 2009, but Defendant claims that

he was not notified of said denial until September 14, 2009. He avers that he wrote his attorney at

some earlier date asking about the petition, and received no response. Defendant then contacted the

Third Circuit Court of Appeals, which sent him a docket sheet with an entry pertaining to the

Supreme Court denial of certiorari. He received the docket sheet on September 14, 2009. As a result

of the delayed notice, Defendant now asks for equitable tolling of the time period allowed by law

to file a habeas corpus petition pursuant to 28 U.S.C. § 2255. In his filing, Defendant does not

address any substantive grounds for habeas corpus relief.

Case 2:04-cr-00489-CMR Document 203 Filed 10/13/09 Page 2 of 4
II. DISCUSSION

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),5

defendants have one-year from “the date on which the judgment of conviction becomes final” to file

a collateral attack. In the instant case, that period began to run on June 1, 2009, upon the denial by 6

the Supreme Court of Defendant’s petition for a writ of certiorari. Although Defendant claims that 7

he lost a substantial amount of time waiting for communication regarding whether his petition for

writ of certiorari had been granted, at the date of this Order Defendant still has several months to file

a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. However, there is

no need to address his particular arguments because the Court cannot address the merits of the

instant Petition at this time.

Relevant precedent dictates that a federal court lacks authority to consider the

timeliness of a § 2255 petition until the petition has been filed because there must be a case or

controversy before the court. Therefore, it follows that “a court only has authority to consider a

8

motion for extension for time . . . if the petitioner articulated grounds for habeas corpus relief.”9

Defendant did not state grounds for relief in his instant submission to the Court. Thus, there is no

jurisdiction to consider Defendant’s Petition; he only indicated that he was planning to file a § 2255

petition, but has not yet filed one at this time.

Defendant is within his rights to file a § 2255 petition with grounds for habeas corpus

28 U.S.C. §§ 2241-66; see also Lloyd v. United States, 407 F.3d 608, 611 (3d Cir. 2005).

5

See id. § 2255(f)(1) (2008).

6

See Karpal v. United States, 166 F.3d 565, 577 (3d Cir. 1999).

7

See Anderson v. Pa. AG, 82 Fed. Appx. 745, 749 (3d Cir. Pa. 2003) (citing Green v. United States, 260

8

F.3d 78, 82 (2d Cir. 2001)).

See United States v. Bronson, 2009 U.S. Dist. LEXIS 53912 at *9-10 (W.D. Pa. June 25, 2009).

9

Case 2:04-cr-00489-CMR Document 203 Filed 10/13/09 Page 3 of 4
relief. Defendant is aware of his deadline to file such a motion if he desires to do so. 

An appropriate Order follows.

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