Myer v. United States
Opinion of the Court
ORDER
Gerald L. Myer appeals pro se from a district court judgment denying his motion to vacate his sentence filed under 28 U.S.C. § 2255. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
In 1999, Myer pleaded guilty to conspiring to distribute and possessing with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841 and 846. On March 16, 2000, the court sentenced him to a total of 120 months of imprisonment. Myer did not file a direct appeal. On November 17, 2000, Myer filed a motion requesting leave to file a delayed appeal, which the district court denied.
Thereafter, Myer submitted a § 2255 motion to vacate his sentence, that was dated April 26, 2001, and was filed on May 1, 2001. Myer argued that: 1) counsel rendered ineffective assistance because he
Upon review, we conclude that the district court properly dismissed Myer’s § 2255 motion as untimely. The Antiterrorism and Effective Death Penalty Act contains a one-year statute of limitations period during which a § 2255 motion to vacate sentence must be filed. See 28 U.S.C. § 2244(d)(1); see also Dunlap v. United States, 250 F.3d 1001, 1004-05 (6th Cir.), cert. denied, 534 U.S. 1057, 122 S.Ct. 649, 151 L.Ed.2d 566 (2001). The statute of limitations begins to run from the latest of four circumstances, one of which is the date on which the judgment became final by the conclusion of direct review. See 28 U.S.C. § 2244(d)(1)(A). Here, Myer’s conviction became final on March 26, 2000, when the time for filing a direct appeal expired. See Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000). However, he did not file his § 2255 motion until May 31, 2001, beyond the one-year time period permitted for filing such a motion.
Contrary to Myer’s argument, the one-year statute of limitations was not renewed merely because he asserted a ground for relief based upon the ruling in Apprendi. This court has now issued a published decision that joins the majority of other circuits in holding that the Supreme Court’s holding in Apprendi is not retroactively applicable, even to cases on initial collateral review. See Goode v. United States, 305 F.3d 378, 382 (6th Cir.), cert. denied, — U.S. -, 123 S.Ct. 711, 154 L.Ed.2d 647 (2002). Moreover, Myer has not established that he is entitled to equitable tolling. See Dunlap, 250 F.3d at 1008-10.
For these same reasons, the court need not consider the merits of Myer’s claims numbered 1 and 4 above.
Accordingly, we affirm the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit.
Reference
- Full Case Name
- Gerald L. MYER v. United States
- Status
- Published