### UNITED STATESDISTRICT COURT FORTHE DISTRICT OF COLUMBIA UNITED STATES OFAMERICA, ) )**~** 

### ) ) 

### MATTHEWWEST, ) ) 

### DefendantlPetitioner. ) 

# ..- Criminal Case No. 04-93 (RJL)

, 

# FILED JUN 0 8 2009 NANCYMAYER WHITTINGTON. CLERK U.S. D1STi1ICT COURT 

### MEMORArM ORDER (June , 2009) Petitioner Matthew West, a federal Bureau ofPrisons inmate, has moved under 28 U.S.C § 2255 to vacate, set aside, or correct his sentence.] ("Def.'s Mot." [Dkt. #41].) In response, the government has moved to dismiss West's motion on the basis that it is time-barred. ([Dkt. #45].) Forthe following reasons, the Court will GRANT the government's motion and DENY West's motion. 

### BACKGROUND West was convicted on October 1, 2004 ofpossession ofa firearm by a convicted felon, in violation of 18 U.S.C. §922(g)(l). On March 24, 2005, this Court sentenced West to a 216-monthterm ofimprisonment. (Judgment at 2 [Dkt.
28 U.S.C. § 2255(a) provides: A prisoner in custody under sentence ofa court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation ofthe Constitution or laws ofthe United States, or that the court was withoutjurisdictionto impose such sentence, orthat the sentence was in excess ofthe maximum authorized by law, or is otherwise subjectto collateral attack, may move the court which imposed the sentence to vacate, set aside or correctthe sentence.#29].) The United States Court ofAppeals for the District ofColumbia affirmed West's conviction on August 15,2006. 

### UnitedStates v. 

### West, 458 F.3d 1, 14 (D.C. Cir. 2006). West subsequently filed the present motion to vacate, set aside,

or correct his sentencepursuantto 28 U.S.c. § 2255 on April 14,2008. In his motion, West contends that he received ineffective assistance ofcounsel and that, at the time ofhis sentencing, he was not an Armed Career Criminal subjectto a fifteen-year mandatory-minimum sentence underto 18 U.S.C. § 924(e). (Def.'s Mot. at 5.) 

### DISCUSSION The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that a petitioner file a § 2255 motion within one year from the date on whichthejudgmentofconvictionbecomes final, with certain enumerated exceptions.2 28 U.S.C. § 2255(f). A convictionbecomes final when the U.S. Supreme Court "affirms a conviction onthe merits on direct review or denies a 2 The AEDPA requires that apetitioner file a § 2255 motion within one year ofthe later of:(1) the date on which thejudgment ofconvictionbecomes final; (2) the date on which the impediment to making a motion created by governmental action in violation ofthe Constitution or laws ofthe United States is removed, ifthe 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, ifthat 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 ofdue diligence. 28 U.S.C. § 2255(t). Petitionerprovides no indication that any ofexceptions outlined in subsections (2)-(4) apply in the present case, nor does that Court find any.
2petition for a writ ofcertiorari, or when the time for filing a certiorari petition expires." 

### Clay v. 

### UnitedStates, 537 U.S. 522, 527 (2003). Inthis case, petitioner did not file a petition for a writ ofcertiorari.3 Therefore, petitioner's conviction became final ninety days afterthe U.S. Court ofAppeals'judgment, orNovember 13,2006, Sup. Ct. R. 13; 28 U.S.C. § 2101(c), and West's window to file his motion expired one yearthereafter, on November 13,2007. West, however, did not file his motion until April 14, 2008, five months after that critical statutory deadline. West's § 2255 motion is thus time-barred underthe AEDP A. West argues, however, that his § 2255 claim is preservedby equitable tolling because he mistakenly first filed his collateral challenge to his sentence in the U.S. Court ofAppeals as a Motion to Recall the Mandate. (Def.'s Mot. at 6.) While itremains an open question in our Circuitwhether a court may apply equitable tolling to the AEDPA's one-year statute oflimitations, 

### UnitedStates v. 

### Pollard, 416 F.3d48,56 n.l (D.C. Cir. 2005), ifequitable tolling can apply, it would only apply if"extraordinary circumstances beyond a prisoner's control make it impossible to file a petition ontime," 

### UnitedStates v. 

### Cicero, 214 F.3d 199,203 (D.C. Cir. 2000) (quoting 

### Calderon v. 

### UnitedStates Dist. Court/or the CentralDist. o/California, 128 F.3d 1283, 1288 (9th Cir. 1997)) (internal quotations omitted). Here, West makes no allegations thathe made a good faith effortto file his § 2255 motion but was prevented from doing so in a timely

3 Indeed, West contends that his counsel provided ineffective assistance for failing to file apetition for a writ ofcertiorari. (Def.'s Mot. at 5.) 3

### mannerby circumstances or events out ofhis control. Rather, West merely provides that he mistakenly failed to file the 

### correct motion in a timely manner. A petitioner's "ignorance ofthe law or unfamiliarity with the legal process will not
excuse his untimely filing." 

### See Cicero, 214 F.3d at 203-04 (citing 

### Fisher v. 

### Johnson, 174 F.3d 710,714-15 (5th Cir. 1999»; 

### see also Fears v. 

### UnitedStates, No. 06-86, 2006 WL 763080, at *4 (D.D.C. Mar. 24, 2006) ("Neitherpetitioner's self-acknowledged 'limited intelligence' nor his ignorance ofthe law
... are sufficienttojustify the extraordinary action ofdeparting from the will ofCongress

as clearly expressed in § 2255."). Thus, West's failure to file the correct motion withinthe required one-year window cannotbe categorized as an "extraordinary circumstance." Accordingly, because West has not alleged any circumstances related to his untimely § 2255 motion so compelling as to warrant equitable tolling, and because West's motion was filed outside the one-year filing window, it is hereby ORDERED 

### that the government's motion to dismiss petitioner's motion under 28 U.S.C § 

### 2255 to vacate, set aside, or correcthis sentence is GRANTED; and it is further ORDERED 

### that the petitioner's motion under 28 U.S.C § 2255 to vacate, set aside, or correct his sentence is DENIED. 

### SO ORDERED.

# {4~ RICHA EON United States District Judge

4