United States District Court, Eastern District of Washington
ORDER DENYING 28 U.S.C. §2255 MOTION
LONNY R. SUKO, Senior United States District Judge
BEFORE THE COURT is Defendant’s 28 U.S.C. §2255 Motion (ECF No. 52).
§2255 provides in relevant part:
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.
Here, the motion and the files and records of the case conclusively show the Defendant is entitled to no relief.
Defendant’s motion is timely under 28 U.S.C. §2255(f). Judgment was entered on November 12, 2013 (ECF No. 50). Under normal circumstances, Defendant had 14 days to take a direct appeal to the Ninth Circuit Court of Appeals. Fed. R. App. P. 4(b)(1)(A). There is authority that in cases where a direct appeal is not taken, as in this case, the judgment of conviction does not become final until expiration of the appeal period. Moshier v. U.S., 401 F.3d 116, 118 (2nd Cir. 2005); Butler v. U.S., 2014 WL 584761 (D. Hawai’i 2014) at *3. Defendant’s appeal period expired on November 26, 2013. If his judgment of conviction became final on November 26, 2013, his §2255 motion is timely because it was filed on November 26, 2014, within one year from the entry of final judgment. 28 U.S.C. §2255(f)(1).
Even if Defendant’s judgment of conviction is considered to have become final on November 12, 2013, due to the fact he waived his right to appeal pursuant to the terms of his Plea Agreement (ECF No. 30 at Paragraph 16), the court deems his §2255 motion timely, notwithstanding the fact it was filed on November 26, 2014. This is because of the “prison mailbox rule.” A prisoner’s federal habeas petition is deemed filed when he hands it over to prison authorities for mailing to the district court. Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379 (2009). Defendant’s motion is dated November 6, 2014, and the court reasonably assumes that is the day he handed it over to prison authorities for mailing to this court.
Defendant was sentenced to a 15 year (180 months) mandatory minimum term of imprisonment pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(1), which provides in relevant part:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in §922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years . . . .
Defendant contends his counsel rendered ineffective assistance by failing to challenge use of his 2006 Yakima County Superior Court conviction for Attempting to Elude a Police Vehicle, RCW 46.61.024 (2003), as a qualifying “violent felony” under the ACCA. This was one of three convictions used to enhance Defendant’s sentence under the ACCA. “Violent felony” is defined in 18 U.S.C. §924(e)(2)(B) as:
[A]ny crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by ...