IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) NO. 2:00-CR-171

) 

JASON BEST, )

)

Defendant/Petitioner. )

OPINION AND ORDER

This matter is before the Court on the “Motion for Time

Extension,” filed by Defendant, Jason Best, on January 22, 2008.

For the reasons set forth below, the motion is DENIED. 

BACKGROUND

In his motion, Best states his 28 U.S.C. section 2255 motion

is due on February 20, 2008. He requests a 60-day extension of

time, claiming there are pending motions before this Court as well

as the Court of Appeals concerning production of discovery that he

needs to support his section 2255 motion.

DISCUSSION

Title 28 United States Code Section 2255 prescribes that a “1-

year period of limitation shall apply to a motion under this

section.” 28 U.S.C. § 2255. “The limitation period shall run from

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the latest of (1) the date on which the judgment of conviction

becomes final.” Id. In this case, Best was convicted by a jury of

one count of conspiracy to distribute more than 50 grams of crack

cocaine in violation of 21 U.S.C. § 846, two counts of possession

with intent to distribute crack cocaine in violation of 21 U.S.C.

§ 841(a)(1), and two counts of maintaining a place for distribution

of crack cocaine in violation of 21 U.S.C. § 856(a)(1). Relying

upon the Sentencing Guidelines, this Court sentenced Best to life

imprisonment. 

In United States v. Best, 426 F.3d 937 (7th Cir. 2005), the

Seventh Circuit affirmed the decision in part, but ordered a

limited remand of Best’s sentence in accordance with United States

v. Booker, 543 U.S. 220 (2005), and United States v. Paladino, 401

F.3d 471 (7th Cir. 2005). Best filed a writ of certiorari, and on

February 20, 2007, the Supreme Court of the United States denied

the petition. See In re Best, 127 S. Ct. 1304 (Feb. 20, 2007).

This Court issued an order on March 7, 2006, finding that the

original sentence calculated under the Guidelines was reasonable

and fair, and that the Court would not have chosen a different

sentence had it known that the Guidelines were mandatory. The

Seventh Circuit issued an order on April 25, 2006, affirming the

sentence issued by this Court. Best’s conviction became final on

February 20, 2007, the date the Supreme Court denied certiorari.

See Clay v. United States, 537 U.S. 522, 527 (2003) (holding

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finality attaches when Supreme Court denies a petition for writ of

certiorari). Thus, Best is correct in his calculation that his

section 2255 petition should be filed on or before February 20,

2008. 

The one-year time limit is not jurisdictional, and can be

extended in narrow instances such as “unique circumstances” or

those giving rise to equitable tolling. See Poe v. United States,

468 F.3d 473, 477-78 (7th Cir. 2006); Nolan v. United States, 358

F.3d 480, 484 (7th Cir. 2004). The doctrine of “unique

circumstances” applies “only where a party has performed an act

which, if properly done, would postpone the deadline for filing his

appeal and has received specific assurance by a judicial officer

that his act has been properly done.” Poe, 468 F.3d at 477-78

(quoting Osterneck v. Ernst & Whitney, 489 U.S. 169, 179 (1989)).

In this case, there is no evidence that a judicial officer

ever gave any assurances to Best that he properly performed an act

that would postpone the deadline for filing his section 2255

motion. Although Best claims that there are pending motions before

this Court, all motions filed to date have been ruled upon by this

Court. Best is correct that his notice of appeal, filed on April

19, 2007, has not been ruled upon by the Seventh Circuit. However,

the Seventh Circuit notified Best on April 25, 2007, of his

appeal’s tardiness (it was one day late), and notified Best that he

may file a notarized statement or a declaration in compliance with

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28 U.S.C. section 1746 setting forth the date the notice of appeal

was deposited in the prison’s internal mail system and stating

whether first class postage was prepaid. Best filed a “Time

Extension for Notice of Appeal” on May 7, 2007. This Court denied

the motion for extension of time to file a notice of appeal because

Best’s affidavit failed to state that he put the notice in the

prison mail system with prepaid first-class postage. See United

States v. Craig, 368 F.3d 738, 740 (7th Cir. 2004) (holding Rule

4(c)(1) requires the declaration to state both the date of deposit

and that first-class postage had been prepaid, finding “50% is not

enough.”). Thus, although Best’s notice of appeal remains pending

with the Seventh Circuit, it will likely be denied as untimely.

To the extent Best’s current motion can be considered a

request for equitable tolling, it still fails. “Equitable tolling

is a remedy reserved for ‘[e]xtraordinary circumstances far beyond

the litigant’s control [that] . . . prevented timely filing.’”

Nolan, 358 F.3d 484 (quoting Modrowski v. Mote, 332 F.3d 965, 967

(7th Cir. 2003)). “Equitable tolling of the statute of limitations

is such exceptional relief that ‘we have yet to identify a

circumstance that justifies equitable tolling in the collateral

relief context.’” Nolan, 358 F.3d at 484 (quoting Lloyd v. Van

Natta, 296 F.3d 630, 633 (7th Cir. 2002)). In this case, Best

claims he needs the production of certain discovery to support his

section 2255 motion. Best is seeking the production of grand jury

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transcripts and the makeup of the grand jury, a request which this

Court previously denied. (See this Court’s order dated April 4,

2007.) The Seventh Circuit has held that “unavailability of a

transcript does not allow equitable tolling to excuse an otherwise

untimely petition.” Lloyd, 296 F.3d at 634. Here, the transcript

is not only unavailable, but this Court has ruled that Best is not

entitled to the grand jury transcript or information comprising the

makeup of the grand jury. Therefore, Best’s request for an

extension of time is DENIED.

CONCLUSION

For the aforementioned reasons, Best’s “Motion for Time

Extension” is DENIED. 

DATED: January 29, 2008 /s/ RUDY LOZANO, Judge

United States District Court

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