IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

: NO. 05-98

v. :

:

GREGORY H. LADNER :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. MARCH 9, 2012

Gregory H. Ladner (“Petitioner”) was a federal 

prisoner incarcerated at the Federal Correctional Institution in 

Fort Dix, New Jersey. While incarcerated, Petitioner filed a pro 

se motion to vacate, set aside, or correct his sentence, 

pursuant to 28 U.S.C. § 2255 (hereinafter “§ 2255 Motion”) 

because he received constitutionally ineffective assistance of 

counsel. The Government moved to dismiss the petition as 

untimely. For the reasons set forth below, Petitioner’s motion 

is time-barred and the Court will deny and dismiss with 

prejudice.

I. BACKGROUND

On July 8, 2005, a jury found Petitioner guilty of one 

count of knowingly making false statements and representations 

to a federal firearms licensee in violation of 18 U.S.C. § 

924(a)(1)(A). On January 10, 2006, the Court sentenced 

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Petitioner to eighteen months of imprisonment, three years of 

supervised release, a $500 fine, and a special assessment of 

$100. Judgment, ECF No. 57.

The Court suspended execution of Petitioner’s sentence 

until February 9, 2006, at which time Petitioner was directed to 

report to a designated prison. Order, Jan. 10, 2006, ECF No. 55. 

On January 13, 2006, Petitioner directly appealed his sentence. 

Notice of Appeal 1, ECF No. 58.

While his appeal was pending, Petitioner failed to 

surrender to serve his sentence and thereby became a fugitive. 

Petitioner’s appellate counsel pursued Petitioner’s appeal 

despite his fugitive status. On June 8, 2007, the Third Circuit, 

nevertheless, dismissed his appeal under the fugitive 

disentitlement doctrine. See United States v. Ladner, 226 F. 

App’x 250, 251-53 (3d Cir. 2007) (“We will not permit 

[Petitioner] to thumb his nose at justice and to remain a 

fugitive while we hear his appeal. We see no compelling reason 

to hear this case.”). Petitioner did not seek a writ of 

certiorari.

On July 28, 2009, Petitioner was arrested in Los 

Angeles, California. On April 18, 2011, while incarcerated, 

Petitioner filed a § 2255 Motion.1

 

1 Petitioner originally filed a § 2255 Motion and 

accompanying memorandum on an outdated standard form. See § 2255 

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Petitioner served his term of incarceration and, 

according to the Federal Bureau of Prisons’ inmate locater, was 

released on November 18, 2011. Thus, Petitioner is currently on 

supervised release.

The Government moved to dismiss because the § 2255 

Motion is untimely. Mot. to Dismiss 1, ECF No. 71. The Court 

granted Petitioner’s request for an extension of time to 

respond, and, thereafter, Petitioner filed a timely response. 

Pet’r’s Resp. 1, ECF No. 74. The matter is now ripe for 

disposition.

II. LEGAL STANDARD

A federal prisoner in custody under sentence of a 

federal court challenging his sentence based on a violation of 

the U.S. Constitution or laws of the United States may move the 

court that imposed the sentence to vacate, set aside, or correct 

the sentence.2 See 28 U.S.C. § 2255(a) (Supp. IV 2011). In a §

 

Motion, April 26, 2011, ECF No. 63. On May 2, 2011, the Court 

ordered Petitioner to complete the Court’s current standard form 

as provided by the Clerk of Court. Order, May 2, 2011, ECF No. 

64. On May 23, 2011, Petitioner filed another § 2255 Motion on 

the Court’s current standard form. § 2255 Motion, May 27, 2011, 

ECF No. 65. For purposes of calculating the statute of 

limitations period, the Court will look to the date Petitioner 

placed the original § 2255 Motion in the prison mailing system, 

that is, April 18, 2011.

2 Although Petitioner has served his term of 

incarceration, he filed the § 2255 Motion while incarcerated and 

is currently serving a term of supervised release. Therefore,

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2255 motion, a federal prisoner may attack his sentence on any 

of the following grounds: (1) the judgment was rendered without 

jurisdiction; (2) the sentence imposed was not authorized by law 

or otherwise open to collateral attack; or (3) there has been 

such a denial or infringement of the constitutional rights of 

the prisoner as to render the judgment vulnerable to collateral 

attack. See id. § 2255(b).

A petitioner is entitled to an evidentiary hearing as 

to the merits of his claim unless it is clear from the record 

that he is not entitled to relief.

3 The Court must dismiss the 

motion “[i]f it plainly appears from the motion, any attached 

exhibits, and the record of prior proceedings that the moving 

party is not entitled to relief.” Section 2255 R. 4(b). A 

prisoner’s pro se pleading is construed liberally. See Erickson 

v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Huertas v. 

Galaxy Asset Mgmt., 641 F.3d 28, 32 (3d Cir. 2011).

 

the Court may entertain the motion. See, e.g., United States v. 

Essig, 10 F.3d 968, 970 n.3 (3d Cir. 1993).

3 Section 2255 provides,

Unless the motion and the files and records of the 

case conclusively show that the prisoner is entitled 

to no relief, the court shall cause notice thereof to 

be served upon the United States attorney, grant a 

prompt hearing thereon, determine the issues and make 

findings of fact and conclusions of law with respect 

thereto.

28 U.S.C. § 2255(b) (Supp. IV 2011).

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III. DISCUSSION

Based on the § 2255 Motion and the record of 

proceedings, it plainly appears that Petitioner is not entitled 

to relief because his motion is untimely. Furthermore, 

Petitioner is not entitled to equitable tolling. Therefore, the 

Court will deny the motion and dismiss with prejudice.

Petitioner’s § 2255 Motion is untimely. The 

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 

establishes a one-year statute of limitations period for § 2255 

motions. 28 U.S.C. § 2255(f) (Supp. IV 2011). That period 

generally runs from “the date on which the judgment of 

conviction becomes final.”4 Id. § 2255(f)(1).

Petitioner’s judgment became final on September 6, 

2007, when his time to petition for a writ of certiorari for 

review of the Third Circuit’s judgment expired. See Clay v. 

United States, 537 U.S. 522, 525 (2003) (“[A] judgment of 

conviction becomes final when the time expires for filing a 

petition for certiorari contesting the appellate court’s 

affirmation of the conviction.”); U.S. Sup. Ct. R. 13(1) 

(providing ninety-day period to file petition for writ of 

certiorari to review appellate court judgment). Petitioner had 

 

4 The alternate start dates are not applicable here. See

28 U.S.C. § 2255(f)(2)-(4).

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until September 6, 2008, to file a § 2255 motion. Therefore, the 

§ 2255 Motion, filed on April 18, 2011, is over two years late.

Petitioner is not entitled to equitable tolling of the 

limitations period. In rare instances, the Court may exercise 

its equitable powers to toll AEDPA’s limitations period. See

Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). Equitable 

tolling is proper only when a petitioner shows “(1) that he has 

been pursuing his rights diligently, and (2) that some 

extraordinary circumstance stood in his way and prevented timely 

filing.” Id. at 2562 (internal quotation marks removed). 

“[E]quitable tolling is appropriate when principles of equity 

would make the rigid application of a limitation period unfair.” 

Pabon v. Superintendent S.C.I. Mahanoy, 654 F.3d 385, 399 (3d 

Cir. 2011).

Petitioner has not diligently pursued his rights. 

Indeed, he was a fugitive who attempted to evade his sentence. 

Furthermore, after his capture, Petitioner waited over twenty 

months to file the § 2255 Motion.5 Thus, Petitioner failed to 

show the reasonable diligence necessary to receive equitable 

tolling. See Allen v. Rozum, No. 07-3256, 2008 WL 4462083, at *1 

 

5 Petitioner’s argument that he lacked access to legal 

materials and was otherwise delayed in filing the motion after 

his capture in Los Angeles on July 28, 2009, is immaterial 

because Petitioner’s time to file a § 2255 motion had expired by 

then.

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n.1 (E.D. Pa. Oct. 2, 2008) (Robreno, J.) (refusing to toll 

limitations period that ran while state prisoner was fugitive 

and waited four years after capture to file habeas petition).

IV. CERTIFICATE OF APPEALABILITY

When a district court issues a final order denying a § 

2255 motion, the Court must also decide whether to issue or deny 

a Certificate of Appealability (“COA”). See Section 2255 R. 

11(a). The Court may issue a COA “only if the applicant has made 

a substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2253(c)(2) (2006).

When the district court denies a habeas petition on 

procedural grounds without reaching the prisoner’s 

underlying constitutional claim, a COA should issue 

when the prisoner shows, at least, that jurists of 

reason would find it debatable whether the petition 

states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it 

debatable whether the district court was correct in 

its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, an 

evidentiary hearing is not required because it plainly appears 

that Petitioner’s § 2255 Motion is time-barred. For the same 

reasons, jurists of reason would not find it debatable whether 

the Court is correct in this procedural ruling. Therefore, the 

Court will deny a COA.

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V. CONCLUSION

For the reasons provided, the Court will grant the 

Government’s Motion to Dismiss and deny and dismiss with 

prejudice Petitioner’s § 2255 Motion. The Court will not issue a 

Certificate of Appealability. An appropriate order will follow.

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