UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 08-20604

RODERICK RHODES, 

Defendant.

 /

OPINION AND ORDER DENYING DEFENDANT’S AMENDED MOTION 

TO VACATE SENTENCE UNDER 28 U.S.C. § 2255

Pending before the court is Defendant Roderick Rhodes’s motion to vacate

sentence pursuant to 28 U.S.C. § 2255. As noted in this court’s order of November 15,

2010, Defendant was sentenced on July 9, 2009, and judgment was entered on July 15,

2009. Subsequently, Defendant filed a motion for habeas corpus under 28 U.S.C. 

§ 2241, filed on September 29, 2010. After notice to Defendant, that motion was

combined with Defendant’s motion to set aside the plea agreement, and Defendant filed

an amended motion under 28 U.S.C. § 2255 on December 16, 2010. The court ordered

a response from the Government, which was filed on January 21, 2011.

Under 28 U.S.C. § 2255, a prisoner sentenced by a federal court may “move the

court which imposed the sentence to vacate, set aside or correct the sentence” when

“the sentence was imposed in violation of the Constitution or laws of the United States,

or that the court was without jurisdiction to impose such sentence, or that the sentence

was in excess of the maximum authorized by law, or is otherwise subject to collateral

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attack.” 28 U.S.C. § 2255. However, a one-year period of limitation applies to all

motions filed under 28 U.S.C. § 2255, which runs from the latest of–

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the United

States is removed, if the 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, if that 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 of due diligence.

28 U.S.C. § 2255(f). Only the first of these subsections applies to the instant motion. 

Defendant’s judgment became final on July 29, 2009, when the time to file a notice of

appeal ended, fourteen days following entry of judgment. Fed. R. App. P. 4(b). Thus,

the period of limitation expired on July 29, 2010, two months prior to Defendant’s

motion. Although the United States Court of Appeals for the Sixth Circuit has

determined that the one-year limitation period is subject to equitable tolling, Griffin v.

Rogers, 308 F.3d 647, 652 (6th Cir. 2002), Defendant has asserted no basis for

equitable tolling of the statutory period. Nor does the court discern from Defendant’s

motion that any indications such basis exists. Therefore, Defendant’s motion under §

2255 is untimely and will be denied. Accordingly,

IT IS ORDERED that Defendant’s amended motion to vacate sentence pursuant

to 28 U.S.C. § 2255 [Dkt. # 48] is DENIED.

IT IS FURTHER ORDERED that Defendant’s motion to set as plea agreement

[Dkt. # 44] is TERMINATED AS MOOT.

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FINALLY, IT IS ORDERED that Defendant’s motion for habeas corpus pursuant

to 28 U.S.C. § 2241 [Dkt. # 45] is TERMINATED AS MOOT.

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: February 24, 2011

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, February 24, 2011, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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