                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

 UNITED STATES OF AMERICA,                        )
                                                  )
               ~                                  )   Criminal Case No. 04-93 (RJL)
                                                  )                                  ,

 MATTHEW WEST,                                    )
                                                  )
                                                                     FILED
                      DefendantlPetitioner.       )                JUN 0 8 2009


                           MEMORArM ORDER
                                         ..-                  NANCY MAYER WHITTINGTON. CLERK
                                                                    U.S. D1STi1ICT COURT

                             (June , 2009)

       Petitioner Matthew West, a federal Bureau of Prisons inmate, has moved

under 28 U.S.C § 2255 to vacate, set aside, or correct his sentence.] ("Def.'s

Mot." [Dkt. #41].) In response, the government has moved to dismiss West's

motion on the basis that it is time-barred. ([Dkt. #45].) For the following reasons,

the Court will GRANT the government's motion and DENY West's motion.

                                 BACKGROUND

       West was convicted on October 1, 2004 of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(l). On March 24, 2005, this

Court sentenced West to a 216-month term of imprisonment. (Judgment at 2 [Dkt.


      28 U.S.C. § 2255(a) provides:
      A prisoner in custody under sentence of a court established by Act of
      Congress claiming the right to be released upon the ground that 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 attack, may move the court which
      imposed the sentence to vacate, set aside or correct the sentence.
#29].) The United States Court of Appeals for the District of Columbia affirmed

West's conviction on August 15,2006. United States v. West, 458 F.3d 1, 14

(D.C. Cir. 2006). West subsequently filed the present motion to vacate, set aside,

or correct his sentence pursuant to 28 U.S.c. § 2255 on April 14,2008. In his

motion, West contends that he received ineffective assistance of counsel and that,

at the time of his sentencing, he was not an Armed Career Criminal subject to a

fifteen-year mandatory-minimum sentence under to 18 U.S.C. § 924(e). (Def.'s

Mot. at 5.)

                                     DISCUSSION

       The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A")

requires that a petitioner file a § 2255 motion within one year from the date on

which the judgment of conviction becomes final, with certain enumerated

exceptions. 2 28 U.S.C. § 2255(f). A conviction becomes final when the U.S.

Supreme Court "affirms a conviction on the merits on direct review or denies a

2
         The AEDPA requires that a petitioner file a § 2255 motion within one year of the
later 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(t). Petitioner provides no indication that any of exceptions outlined in
subsections (2)-(4) apply in the present case, nor does that Court find any.


                                            2
petition for a writ of certiorari, or when the time for filing a certiorari petition

expires." Clay v. United States, 537 U.S. 522, 527 (2003). In this case, petitioner

did not file a petition for a writ of certiorari. 3 Therefore, petitioner's conviction

became final ninety days after the U.S. Court of Appeals' judgment, or November

13,2006, Sup. Ct. R. 13; 28 U.S.C. § 2101(c), and West's window to file his

motion expired one year thereafter, on November 13,2007. West, however, did

not file his motion until April 14, 2008, five months after that critical statutory

deadline. West's § 2255 motion is thus time-barred under the AEDP A.

        West argues, however, that his § 2255 claim is preserved by equitable

tolling because he mistakenly first filed his collateral challenge to his sentence in

the U.S. Court of Appeals as a Motion to Recall the Mandate. (Def. 's Mot. at 6.)

While it remains an open question in our Circuit whether a court may apply

equitable tolling to the AEDPA's one-year statute oflimitations, United States v.

Pollard, 416 F.3d 48,56 n.l (D.C. Cir. 2005), if equitable tolling can apply, it

would only apply if "extraordinary circumstances beyond a prisoner's control

make it impossible to file a petition on time," United States v. Cicero, 214 F.3d

199,203 (D.C. Cir. 2000) (quoting Calderon v. United States Dist. Court/or the

Central Dist. o/California, 128 F.3d 1283, 1288 (9th Cir. 1997)) (internal

quotations omitted). Here, West makes no allegations that he made a good faith

effort to file his § 2255 motion but was prevented from doing so in a timely


3
         Indeed, West contends that his counsel provided ineffective assistance for failing
to file a petition for a writ of certiorari. (Def.' s Mot. at 5.)


                                             3
manner by circumstances or events out of his control. Rather, West merely

provides that he mistakenly failed to file the correct motion in a timely manner. A

petitioner's "ignorance of the law or unfamiliarity with the legal process will not

excuse his untimely filing." See Cicero, 214 F.3d at 203-04 (citing Fisher v.

Johnson, 174 F.3d 710,714-15 (5th Cir. 1999»; see also Fears v. United States,

No. 06-86, 2006 WL 763080, at *4 (D.D.C. Mar. 24, 2006) ("Neither petitioner's

self-acknowledged 'limited intelligence' nor his ignorance of the law ... are

sufficient to justify the extraordinary action of departing from the will of Congress

as clearly expressed in § 2255."). Thus, West's failure to file the correct motion

within the required one-year window cannot be categorized as an "extraordinary

circumstance."

       Accordingly, because West has not alleged any circumstances related to his

untimely § 2255 motion so compelling as to warrant equitable tolling, and because

West's motion was filed outside the one-year filing window, it is hereby

       ORDERED that the government's motion to dismiss petitioner's motion

under 28 U.S.C § 2255 to vacate, set aside, or correct his sentence is GRANTED;

and it is further

       ORDERED that the petitioner's motion under 28 U.S.C § 2255 to vacate,

set aside, or correct his sentence is DENIED.




                                                 {4~
       SO ORDERED.


                                                 RICHA          EON
                                                 United States District Judge


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