UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ANDRE LANE, ) ) Petitioner, ) ) v. ) Civil Action No. 14-731 (RDM) ) UNITED STATES OF AMERICA, ) ) Defendant. ) )

MEMORANDUM OPINION

Petitioner Andre Lane, proceeding pro se, filed this action pursuant to

,

seeking to set aside his 2008 conviction and requesting a new trial in D.C. Superior Court. See

Dkt. 1. Petitioner alleges that he was denied effective assistance of appellate counsel and that the

D.C. Court of Appeals erred in affirming his conviction. See Dkt. 1 at 4. Respondent United

States has moved to dismiss the petition as time-barred. See Dkt. 7. Before addressing that

motion, the Court must consider whether it has jurisdiction to adjudicate a § 2254 petition that

challenges the effectiveness of appellate counsel before the D.C. Court of Appeals but that seeks

relief on behalf of a prisoner who is not incarcerated in the District of Columbia.

For the reasons explained below, the Court concludes that it has jurisdiction and that, as

Respondent contends, the petition is untimely. Accordingly, Respondent’s Motion to Dismiss

(Dkt. 7) is GRANTED, and the petition is DISMISSED. I. BACKGROUND

Petitioner, who is currently incarcerated at a federal penitentiary in Kentucky, was tried

and convicted of first-degree murder and sentenced by the Superior Court of the District of

Columbia to thirty-six years to life imprisonment. See Lane v. United States, No. 08-CF-951

(D.C. Dec. 13, 2011) (unpublished); Dkt. 7-1 (Ex. A). On direct appeal, Petitioner argued that

the trial court erred by mistakenly giving the jury an outdated jury instruction and then confusing

the jury by giving a corrected supplemental instruction. See id. He argued that, rather than

giving the supplemental instruction, the trial court should have granted a mistrial sua sponte. Id.

On December 13, 2011, the D.C. Court of Appeals affirmed his criminal conviction, holding that

“the original instruction did not compromise the fundamental fairness of the trial” and that “it

was not plain error for the trial court to decline, sua sponte, to declare a mistrial.” Id. Although

Petitioner did not file a petition for a writ of certiorari, his time to do so would have expired on

March 12, 2012.

On May 30, 2012, Petitioner filed a motion in the D.C. Court of Appeals to recall the

mandate, Dkt. 7 at 5—the required mechanism for raising an ineffective assistance of appellate

counsel claim in the D.C. courts, see Watson v. United States,

(D.C. 1987)

(en banc). He argued that his appellate counsel “was ineffective for failing to raise an

impeachment violation either in his brief or by filing a D.C Code § 23-110 motion raising an

ineffective assistance of trial counsel claim.” Lane v. United States, No. 08-CF-951 (D.C. Mar.

4, 2013) (unpublished), at Dkt. 7-2 (Ex. B). On March 4, 2013, the D.C. Court of Appeals

denied that motion, concluding that Petitioner had “failed to demonstrate that he was denied the

effective assistance of counsel on appeal.” Id.

2 On April 25, 2014, Petitioner filed this habeas action pursuant to

. See

Dkt. 1. The United States moved to dismiss, arguing that the petition is time-barred. See Dkt. 7

at 2-6;

(d)(1). Petitioner then filed a supplemental memorandum in support of

his petition, which did not address timeliness. See Dkt. 8. The Court subsequently cautioned

Petitioner that if he failed to address the arguments in the United States’ motion, those arguments

could be treated as conceded and the petition dismissed on that basis. See Dkt. 9; Local Civil

Rule 7(b); Hopkins v. Women’s Div., General Bd. of Global Ministries,

(D.D.C. 2003) (citing FDIC v. Bender,

(D.C. Cir. 1997)), aff’d,

(D.C. Cir. 2004). Petitioner filed an opposition on March 19, 2015. See Dkt. 10 at 1.

II. ANALYSIS

Although neither party has raised the issue, the Court must first consider its jurisdiction

to hear this action. See Prakash v. Am. Univ.,

(D.C. Cir. 1984).

A. Subject-Matter Jurisdiction

Title

authorizes the district courts to issue writs of habeas corpus “on

behalf of a person in custody pursuant to the judgment of a State court . . . on the ground that he

is in custody in violation of the Constitution or laws or treaties of the United States.” Because

“D.C. local courts are treated as ‘state’ courts for purposes of federal habeas-corpus jurisdiction,”

Gorbey v. United States,

(D.D.C. 2014) (citing Milhouse v. Levi,

, 360 n.6 (D.C. Cir. 1976)); see also Madley v. U.S. Parole Comm’n,

, 1308-

1310 (D.C. Cir. 2002), § 2254 applies to cases brought by D.C. prisoners, see Williams v.

Martinez,

(D.C. Cir. 2009). This jurisdictional grant, however, is subject to

three potentially applicable limitations.

3 First,

“gives the [D.C.] superior court exclusive jurisdiction [over]

virtually all collateral challenges” to convictions entered in the D.C. courts. Head v. Wilson,

(D.C. Cir. 2015). That provision, which the Supreme Court upheld in the face of a

Suspension Clause challenge in Swain v. Pressley,

(1977), allows a prisoner to

move the D.C. Superior Court to vacate, set aside, or correct a conviction or sentence that was

imposed in violation of the U.S. Constitution or the laws of the District of Columbia, Head,

. It further provides, however, that a petition for habeas corpus “shall not be

entertained . . . by any Federal or State court” by “a prisoner who is authorized to apply for

relief” under § 23-110, unless “it . . . appears that the remedy” available under § 23-110 “is

inadequate or ineffective to test the legality of” the prisoner’s “detention.”

-

110(g). 1

Thus, in the ordinary course, § 23-110(g) would likely bar Petitioner from seeking

collateral relief before this Court. Petitioner, however, is not challenging the lawfulness of the

proceedings that occurred before the Superior Court, but rather the effectiveness of his appellate

counsel. In Williams v. Martinez, the Court of Appeals spoke to just this issue and held that

§ 23-110(g) does not pose a barrier to federal jurisdiction to consider a § 2254 petition asserting

ineffective assistance of appellate counsel.

. As the Court of Appeals

explained, § 23-110(g) “only divests federal courts of jurisdiction to hear habeas petitions by

1

(a) provides that a “prisoner in custody under sentence of the Superior Court” may “move the [Superior Court] to vacate, set aside, or correct the sentence,” and § 23- 110(g) provides that “[a]n application for a writ of habeas corpus” by such a prisoner “shall not be entertained by the Superior Court or by any Federal or State court if it appears that the applicant has failed to make a motion for relief under this section or that the Superior Court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”

4 prisoners who could have raised viable claims pursuant to section 23-110(a),” and “the Superior

Court lacks authority to entertain a section 23-110 motion challenging the effectiveness of

appellate counsel.” Id. at 998. Instead of proceeding under § 23-110(a), the D.C. Court of

Appeals has held that a prisoner seeking to raise a challenge to the effectiveness of appellate

counsel must file a motion to recall the mandate with the appellate court and that that motion “is

an ‘independent’ action separate and apart from a section 23-110 motion.” Id. (quoting Wu v.

United States,

(D.C. 2002)). Accordingly, § 23-110(g) does not apply to

claims of ineffective assistance of appellate counsel. Id. Petitioner thus clears the first

jurisdictional hurdle.

The second jurisdictional question involves application of the “immediate-custodian

rule.” The federal habeas statute specifies that an application for a writ of habeas corpus “shall

. . . name . . . the person who has custody over” the petitioner,

, and that the writ

“shall be directed to the person having custody of the person detained,”

§ 2243. Thus, as the

Supreme Court recognized in Rumsfeld v. Padilla,

(2004), the proper

respondent to a federal habeas petition is ordinarily the prisoner’s “immediate custodian”—most

often, the warden of the facility where the petitioner is imprisoned. See also Blair-Bey v. Quick,

(D.C. Cir. 1998). “If a prisoner is currently in custody under a state-court

judgment, the petition must name as respondent the state officer who has custody.” Rules

Governing Section 2254 Cases in the United States District Courts Rule 2(a); see also Padilla,

n.18.

Here, although Petitioner’s immediate custodian is the warden of the federal penitentiary

at Big Sandy in Kentucky, the petition does not name him as the respondent but rather names the

“United States of America.” See Dkt. 1. This flaw, however, does not undercut the Court’s

5 subject-matter jurisdiction. Although this precise question was not directly at issue in Padilla

because Padilla sought relief from the President, the Secretary of Defense and the Commander of

the Naval Brig, who was, in fact, his immediate custodian,

, the analysis in the

Court’s various opinions provides substantial guidance. Most significantly, the majority opinion

made clear that, in referring to the immediate-custodian rule as a “jurisdictional” requirement, it

was not using the term “in the sense of subject-matter jurisdiction of the District Court.”

at

434 n.7. In responding to the dissent’s reliance on prior cases “in which the immediate custodian

rule has not been strictly applied,”

at 461 n.4 (Stevens, J., dissenting), moreover, the majority

noted, among other things, that the respondents in those cases “did not challenge their

designation as inconsistent with the immediate custodian rule,”

at 450 n.18. That is, the

majority treated those cases as ones in which the immediate-custodian defense was waived—

something that could not occur if the omission undercut the District Court’s subject-matter

jurisdiction. And, any doubt on this question was put to rest by the Padilla concurrence, which

clarified the position of two of the five Justices voting in the majority. Writing for himself and

Justice O’Connor, Justice Kennedy explained that the immediate-custodian rule has not been

consistently applied, that the rule is “not jurisdictional in the sense of a limitation on subject-

matter jurisdiction,” and that the rule “can be waived by the Government.”

(Kennedy, J., concurring).

The Court, of course, cannot typically require compliance with an order directed at the

wrong party—if the petition named the Queen of England, for example, the Court could not

meaningfully order that she release the Petitioner from custody. But, in the present context, there

is little doubt that the federal government is fully capable of granting the requested relief. In

Crawford v. Jackson,

(D.C. Cir. 2003), moreover, the Court of Appeals

6 concluded that the immediate-custodian rule was satisfied when the United States appeared,

waived any objection to lack of personal jurisdiction, and consented to the substitution of the

warden as the proper respondent. Here, the United States has implicitly done as much. It has

responded to the petition without invoking the immediate-custodian rule, Dkt. 7, it has done so

fully cognizant of the fact that the United States cannot be sued in its own name without the

unambiguous consent of Congress, see, e.g., United States v. Williams,

(1995), and it has done so despite the fact that the Court issued an Order to Show Cause

requiring that “the custodial Respondent,” Dkt. 2 (emphasis added), respond to the petition and

directing that the United States Marshal serve a copy of the Order to Show Cause on both

“Petitioner’s Warden” and the United States Attorney for the District of Columbia,

It has also

done so against the backdrop of decades of authority holding that courts are required to construe

pro se pleadings “liberally,” Estelle v. Gamble,

(1976), “so as to do justice,”

Fed. R. Civ. P. 8(e). It is thus fair to conclude that the government has waived any defense

premised on the immediate-custodian rule and has acquiesced in the substitution of the Warden

of the Big Sandy Penitentiary, in his official capacity, as the proper respondent. 2

2 See Jackson v. Chatman,

, 491 n.1 (11th Cir. 2014) (per curiam) (noting that district court had sua sponte ordered that warden be substituted as the proper respondent); Von Kahl v. United States,

, 727 n.1 (10th Cir. 2009) (“Whoever the proper respondent may be, the Government has filed a brief on his or its behalf. We therefore proceed to the merits.”); Flynn v. Kansas,

, 811 n.3 (10th Cir. 2008) (holding that State of Kansas had waived any objection to the improper naming of the State of Kansas and the State Attorney General as respondents); Smith v. Idaho,

(9th Cir. 2004) (holding that State of Idaho had waived objection to immediate-custodian rule); Cunningham v. Peters,

, 535 n.* (7th Cir. 1991) (noting that the court had substituted the proper respondent after member of the panel asked at oral argument for the named respondent “People of Illinois” to supply the court with the name of the proper respondent); West v. Louisiana,

(5th Cir. 1973) (construing petition as naming proper respondent because the locus of detention was evident on the face of the petition, the “[f]ailure to name a proper respondent is a procedural rather than a jurisdictional defect,” and denial of the petition on the ground that it 7 The third jurisdictional issue poses the most substantial hurdle to the resolution of the

pending petition. Under

(a), district courts are authorized to grant relief “within

their respective jurisdictions.” The Supreme Court has “interpreted this language to require

‘nothing more than that the court issuing the writ have jurisdiction over the custodian.’” Padilla,

(quoting Braden v. 30th Judicial Circuit Court of Ky.,

(1973)). What this means, however, has evolved over the years.

The relevant precedent starts with the Supreme Court’s decision in Braden v. 30th

Judicial Circuit Court of Kentucky, which considered whether a prisoner serving a sentence in an

Alabama prison could bring a habeas action in the U.S. District Court for the Western District of

Kentucky to challenge a detainer issued by a Kentucky court.

. It was in this

context that the Court observed that, “[r]ead literally, the language of § 2241(a) requires nothing

more than that the court issuing the writ have jurisdiction over the custodian.” Id. at 495. As it

explained, “[s]o long as the custodian can be reached by service of process the court can issue a

writ ‘within its jurisdiction’ requiring that the prisoner be brought before the court for a hearing

on his claim, or requiring” his release, “even if the prisoner himself is confined outside the

court’s territorial jurisdiction.” Id. (emphasis added). The Supreme Court, moreover,

concluded that its decision in Ahrens v. Clark,

(1948), which “indicat[ed] that the

prisoner’s presence within the territorial confines of the district is an invariable prerequisite to

the exercise of the District Court’s habeas corpus jurisdiction,” id. at 495, had been overtaken by

“developments” and that the Court could “no longer view that decision as establishing an

inflexible jurisdictional rule,” id. at 497, 499-500. Against this background, the Supreme Court

improperly named the State of Louisiana “would give an unreasonably narrow reading to the habeas corpus statute.”), vacated in part,

(5th Cir. 1975). 8 held that “[s]ince the petitioner’s absence from the Western District of Kentucky did not deprive

the court of jurisdiction, and since the respondent was properly served in that district,” the

federal court in Kentucky had jurisdiction over the case.

. The Supreme Court did not

retreat from the view that “in many instances the district in which petitioners are held” would

constitute the proper forum, but it treated the issue as one of venue, rather than jurisdiction.

Following Braden, the Court of Appeals for this Circuit considered a similar issue in

Chatman-Bey v. Thornburgh,

(D.C. Cir. 1988) (en banc). That case raised the

question whether a federal prisoner incarcerated outside the District of Columbia could bring a

challenge in this district to his parole eligibility date.

. Citing Braden, the Court of

Appeals held that “it can no longer be maintained that a federal court outside the district of

incarceration lacks subject matter jurisdiction over a habeas claim” and that “venue

considerations were to apply in the determination of the forum in which habeas should be

brought.”

. As the Court explained, Braden taught that “physical presence of [the

petitioner] within this district is not required for the federal court of this district to have

jurisdiction over [the] habeas claim.”

. Rather, the place of the prisoner’s physical

presence merely goes to venue. “[V]enue considerations may, and frequently will, argue in favor

of adjudication of the [petition] in the jurisdiction where the habeas petitioner is confined,”

but in some circumstances the location “where all of the material events took place” and where

“the records and witnesses pertinent to petitioner’s claim” are located may be more appropriate,

(quotation marks omitted). Finally, Chatman-Bey held that, although the District Court

would have lacked personal jurisdiction over the warden, “the government failed in its answer to

interpose as defenses either improper venue or lack of personal jurisdiction over the warden,”

and it was thus “elementary” that those defenses were waived.

.

9 This, then, was the law in this Circuit for many years. A habeas petitioner was generally

required to name his or her immediate custodian as the respondent and, if the matter was raised

by the government, would need to demonstrate personal jurisdiction and venue. But the presence

of the petitioner’s immediate custodian in this district was not a jurisdictional requirement. That,

however, arguably changed with the Supreme Court’s decision in Rumsfeld v. Padilla,

.

Padilla involved a challenge to the jurisdiction of the U.S. District Court for the Southern

District of New York to consider a habeas petition seeking the release of a U.S. citizen detained

in South Carolina by the Department of Defense as an enemy combatant.

. The

Supreme Court held that the New York court lacked jurisdiction and that the habeas petition

should have been brought, instead, in the District of South Carolina, where the petitioner was

being held. In reaching this conclusion, the Court construed Braden—and its observation that

§ 2242(a) requires “nothing more than that the court issuing the writ have jurisdiction over the

custodian”—narrowly. Id. at 442. Thus, where Chatman-Bey read Braden to treat the

“jurisdiction over the custodian” requirement as a traditional question of personal jurisdiction,

, Padilla expressly rejected the contention that Braden “stand[s] for the

proposition that jurisdiction will lie in any district in which the respondent is amenable to service

of process,”

(emphasis added)—the Court thus rejected the so called “long-arm

approach to habeas jurisdiction,”

. Rather, under Padilla, “a district court may not

entertain a habeas petition unless the respondent custodian is within its territorial jurisdiction.”

Stokes v. U.S. Parole Comm’n,

(D.C. Cir. 2004). See also Padilla,

(“[T]hat dicta [in Braden] did not indicate that a custodian may be served with

process outside of the district court’s territorial jurisdiction.”). The Padilla Court explained that

10 this was consistent with Braden, as the “custody” challenged in that case was the detainer issued

by the Kentucky court and not Braden’s then-existing confinement in an Alabama prison; the

relevant “custodian”—the Kentucky warden—was indeed located within the territorial

jurisdiction of the district court reviewing the habeas petition.

. Because

Braden did not involve a “challenge[] to present physical custody,” the overlap that typically

applies to the prisoner’s “district of confinement” and “the district court that has territorial

jurisdiction over the proper respondent” did not apply.

.

Padilla thus announced a “simple rule” for “core” habeas proceedings that challenge

present physical confinement: “Whenever a § 2241 habeas petitioner seeks to challenge his

present physical custody within the United States, he should name his warden as respondent and

file the petition in the district of confinement.” Id. at 447. The apparent simplicity of that rule,

does not, however, resolve the question of whether this Court can adjudicate the instant habeas

petition, where the proper respondent is located outside of this Court’s territorial jurisdiction but

where the government has not raised the issue.

As with the immediate-custodian rule, the Padilla Court made clear that its discussion of

the territorial-jurisdiction requirement did not use the word “jurisdiction” “in the sense of

subject-matter jurisdiction of the District Court.” Id. at 435 n.7. And, again, Justice Kennedy’s

concurring opinion emphasized this point. Joined by Justice O’Connor, he explained that “the

immediate-custodian and territorial-jurisdiction rules are like personal-jurisdiction or venue

rules, [and] objections to the filing of petitions based on those grounds can be waived by the

Government.” Id. at 452 (Kennedy, J., concurring). Similarly, the four dissenting Justices—

Justices Stevens, Souter, Ginsburg, and Breyer—stressed that “the question of the proper forum

to determine the legality of Padilla’s incarceration is not one of federal subject-matter

11 jurisdiction,” and thus “[f]ederal courts undoubtedly have the authority to issue writs of habeas

corpus to custodians who can be reached by service of process ‘within their respective

jurisdictions.’” Id. at 463 (Stevens, J., dissenting). There is, accordingly, no basis to conclude

that Padilla—a case in which the government affirmatively moved to dismiss based on both the

failure to name the proper respondent and the District Court’s lack of jurisdiction over that

respondent, see id. at 432; id. at 453 (Kennedy, J., concurring)—overruled the longstanding rule

that the government may waive an objection to the petitioner’s failure to file his petition in the

jurisdiction of his confinement. See Chatman-Bey,

; see also Moore v. Olson,

(7th Cir. 2004) (holding Warden of Leavenworth Penitentiary, located in

Kansas, waived an objection to adjudication of petition in the Northern District of Illinois);

Simon v. United States,

, 143 & n.9 (2d Cir. 2004) (stating that the government

waived any objection to petitioner’s failure to file in the district where his custodian was

located—the Northern District of Georgia); Aziz v. Leferve,

(11th Cir. 1987)

(holding that petitioner’s New York custodians waived objection to lack of personal jurisdiction

in the Middle District of Florida).

Stokes v. United States Parole Commission is not to the contrary. True, in that case the

D.C. Circuit rejected the petitioner’s contention that “the Supreme Court ‘has abandoned an

inflexible jurisdictional rule,’ based upon the territorial jurisdiction of the district court, ‘in favor

of explicit reliance on modern principles of personal jurisdiction and service of process.’”

Stokes,

. The Court further held that any “[d]icta to the contrary in . . .

Chatman-Bey v. Thornburgh . . . [has] been overtaken by Padilla.”

In Stokes, however,

unlike in this case, the Government moved to dismiss for lack of personal jurisdiction.

. The decision, accordingly, does not address whether the territorial-jurisdiction

12 requirement (or the immediate-custodian rule) is subject to waiver. The decision, moreover, at

least hints that waiver is available, since it notes that the dicta in Chatman-Bey was overtaken by

Padilla, but says nothing about Chapman-Bey’s holding, which was that the government had

“waived” the defense by failing to assert it in a pre-answer motion or responsive pleading.

Compare

, with Chatman-Bey,

. 3

Against this background, the Court concludes that, like the immediate-custodian

requirement, the territorial-jurisdiction rule is subject to waiver. The en banc Court of Appeals

embraced this view in Chatman-Bey, and this Court is unable to conclude that either the Supreme

Court’s decision in Padilla or any subsequent decision of the D.C. Circuit has overruled that

holding. Although the majority opinion in Padilla contains language broadly declaring that a

habeas action must be brought in the jurisdiction where the prisoner is detained, the waiver issue

was not presented in Padilla and, in any event, six Justices embraced a view of the law that

would permit waiver of the immediate-custodian and territorial-jurisdiction requirements.

Moreover, the same day that the Supreme Court decided Padilla, it also issued its decision in

Rasul v. Bush, which reaffirmed that Braden overruled Ahrens’ strict “jurisdictional holding”

and, significantly, cited Chatman-Bey with approval.

, 479 n.9 (2004). And finally,

3 A further issue arguably left open by Padilla, which concerned a habeas challenge under § 2241, is the applicability of the Supreme Court’s holding to petitions, like this one, brought under § 2254. The Padilla dissent identified a number of cases in which the immediate custodian was not named as the respondent. Padilla,

n.4 (Stevens, J., dissenting). In response, the majority distinguished § 2254 petitions from those brought under § 2241. As to § 2254 petitions, the Court wrote, “Congress has authorized . . . petitioners challenging present physical custody to name either the warden or the chief state penal officer as a respondent.” Id. at 450 n.18 (majority opinion) (emphasis in original). It is unclear how this qualification might apply to D.C. prisoners, who, pursuant to

and 24- 201.26, are held in correctional facilities designated by the Attorney General of the United States and generally operated or contracted for by the federal Bureau of Prisons.

13 the conclusion that waiver is available is further bolstered by the D.C. Circuit’s more recent

decision in Williams v. Martinez,

. That case, like this one, involved a § 2254

challenge to a D.C. conviction based on the alleged ineffective assistance of appellate counsel.

Although the petitioner was incarcerated at the Allenwood Penitentiary in White Deer,

Pennsylvania, the U.S. District Court for the Middle District of Pennsylvania transferred the case

to this district pursuant to

(a) on the ground that (in addition to convenience)

the “action might have been brought” here in the first instance. Williams v. Martinez, No. 4:CV-

08-1053,

, at *2 (M.D. Pa. June 3, 2008). The District Court and the D.C.

Circuit then addressed whether § 23-110 posed a jurisdictional barrier to resolution of the

petition. Although focusing on this distinct threshold jurisdictional issue, neither court raised

any question regarding territorial jurisdiction or whether the transferor court was correct that the

“action might have been brought here” in the first instance. See Williams v. Martinez,

(D.D.C. 2008), rev’d and remanded,

.

* * *

In sum, the petition incorrectly names as respondent the United States, rather than the

Warden of the Big Sandy Penitentiary in Kentucky, and the petition was incorrectly brought in

this jurisdiction, rather than in the Eastern District of Kentucky where the Big Sandy Penitentiary

is located. The government, however, has responded to the petition without asserting either

defect. Under these circumstances, the Court could proceed in one of two ways. First, it could

transfer the action to the United States District Court for the Eastern District of Kentucky. See

Chatman-Bey,

. Alternatively, it could treat the immediate-custodian and

territorial-jurisdiction requirements as waived and proceed to the merits. Here, the Court

concludes that the second course would promote judicial economy and the interests of justice.

14 This Court is already familiar with the case and the government’s response to the petition is fully

briefed and ready for resolution.

The Court, accordingly, turns to the statutory defense raised in the government’s Motion

to Dismiss (Dkt. 7) the petition. As explained below, the Court concludes that the petition must

be dismissed as untimely.

B. Timeliness

The deadline to file a § 2254 petition is governed by

(d). See, e.g.,

Head,

. Section 2244(d)(1) provides in relevant part that

[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . . .

(d)(1). The limitations period is then tolled during the pendency of “a properly

filed application for State post-conviction or other collateral review.”

§ 2244(d)(2).

Petitioner’s conviction “became final” on March 12, 2012, ninety days after it was

affirmed. See S. Ct. R. 13.1; see also Clay v. United States,

(2003) (criminal

conviction becomes final “when the time for filing a certiorari petition expires”). At that point,

the clock ran for a little over two and a half months, until Petitioner moved to recall the mandate

on May 30, 2012. Dkt. 7 at 5. The clock was then tolled until the motion to recall the mandate

was denied on March 4, 2013. See

(d)(2); Lawrence v. Florida,

(2007). Thus, the clock ran for approximately sixteen months and one week between

March 12, 2012, the date on which Petitioner’s conviction became final, and April 25, 2014, the

date this petition was filed. Petitioner, therefore, missed the one-year deadline by more than four

months.

15 Petitioner apparently recognizes that he has missed the one-year deadline to file, but

argues that he is entitled to equitable tolling. Dkt. 10 at 1. The Supreme Court has held that

“§ 2244(d) is subject to equitable tolling in appropriate cases.” Holland v. Florida,

(2010). The availability of this safety-valve, however, is not a panacea for all late

filings. Rather, to qualify a petitioner must demonstrate “(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely

filing.”

(quotation marks and citation omitted); see also Lawrence,

-

38.

According to Petitioner, “extraordinary circumstances” are present here because his

correctional facility was on “institutional lockdown” “during the month(s) of December 2011,

through January 2012.” Dkt. 10 at 2; see also id. at 6 (March 2, 2015, letter from M. Horn

stating that “USP Big Sandy was on institutional lock down in December of 2011 until January

1, 2012”). Petitioner contends that, during the lockdown, he was “prohibited and restrained”

from conducting legal research and advancing his case. Id.

For present purposes, the Court assumes that Petitioner has diligently pursued his rights.

The Court will also assume that the “institutional lockdown” described by Petitioner might, in

some circumstances, constitute an “extraordinary circumstance.” Even so, the record does not

support the conclusion that an “extraordinary circumstance stood in [Petitioner’s] way and

prevented timely filing” of his petition. See Holland,

. As explained above,

Petitioner missed the filing deadline by more than four months. The lockdown lasted only one

month. See Dkt. 10 at 6. Petitioner has no explanation for the additional delay. Moreover,

according to Petitioner, the lockdown ended in January 2012—before the one-year limitations

period had even commenced. Petitioner does not explain how a lockdown that predated

16 commencement of the one-year filing period could have prevented him from timely filing his

habeas petition. He does not contend, and the record does not suggest, that he was restrained

from advancing his case after the lockdown ended. Accordingly, Petitioner has failed to meet his

burden of demonstrating that “extraordinary circumstances” prevented him from filing in a

timely manner. Cf. Holland,

(holding that a petitioner’s abandonment by his

attorney could constitute an “extraordinary circumstance”).

Petitioner’s remaining arguments are meritless. He appears to argue that tolling should

have extended for a “reasonable period” after denial of his motion to recall the mandate in order

to allow him to receive notice of that decision. See Dkt. 10 at 3. But

(d)(2)

does not provide for such an extension, and Petitioner does not contend that he actually received

untimely notice or was prejudiced thereby. To the extent Petitioner argues that the limitations

period did not re-start until the time to petition for a writ of certiorari expired ninety days after

his motion to recall the mandate was denied, see Dkt. 10 at 3, that is incorrect. The Supreme

Court addressed this precise question in Lawrence v. Florida,

, and held that

“[s]tate review ends when the state courts have finally resolved an application for state

postconviction relief” and therefore the one-year period is not tolled during the pendency of a

petition for a writ of certiorari after denial of state post-conviction relief. Finally, even if

Petitioner were entitled to an additional ninety days, his petition would remain untimely.

17 CONCLUSION

The Court thus concludes that it has jurisdiction to consider the pending petition but that

it is time barred under

(d). The United States’ Motion to Dismiss is,

accordingly, GRANTED, and the petition is DISMISSED.

A separate Order accompanies this Memorandum Opinion.

/s/ Randolph D. Moss RANDOLPH D. MOSS Date: October 21, 2015 United States District Judge

18