The opinion of the court was delivered by: Ralph R. Erickson, District Judge U.S. District Court
ORDER DENYING MOTION TO VACATE SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 ON GROUNDS THAT STATUTE OF LIMITATIONS HAS RUN AND THAT DOCTRINE OF EQUITABLE TOLLING DOES NOT APPLY
Before the Court is Antonio Alonzo's (hereafter "Alonzo") Motion to Vacate, Set Aside or Correct an Illegal Sentence pursuant to 28 U.S.C. § 2255. (Doc. 804). Because Alonzo has allowed the one-year statute of limitations to run and there exists no basis for equitably tolling the statute of limitations his motion is denied.
II. STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On September 24, 2003, Alonzo was indicted in a single count of Conspiracy to Possess with Intent to Distribute and Distribute a Controlled Substance in violation of 21 U.S.C. § 846. (Doc. 1). On January 5, 2004, the United States filed a notice informing Alonzo of their intention to use his prior criminal history to impose a mandatory life sentence if convicted. A jury trial was commenced on September 20, 2004, which resulted in a verdict of conviction rendered on September 24, 2004. (Doc. 588).
Alonzo was sentenced to the mandatory minimum life sentence on January 7, 2005. (Doc. 674) Judgment was entered on January 11, 2005 (Doc. 677) and a notice of appeal was filed on January 14, 2005. (Doc. 680).
On appeal Alonzo's counsel filed a brief under the doctrine of Anders v. California, 386 U.S. 738 (1967). United States v. Alonzo, 147 Fed. Appx. 617 (8th Cir. 2005). Alonzo was granted leave to file a pro se supplemental brief but elected not to. Id. He raised eight issues on appeal: (1) insufficiency of the evidence; (2) prosecution was barred by double jeopardy; (3) that the Court violated the Sixth Amendment by making fact findings that resulted in the defendant being a person subject to the mandatory minimum which Alonzo argued were beyond those necessarily made by the jury; (4) ineffective assistance of counsel; (5) violation of the marital privilege by admitting into evidence a recording of a controlled buy; (6) a violation of the cumulative error doctrine; (7) a search warrant to search Alonzo's apartment was invalid; and (8) the indictment was not supported by probable cause. Id.
The Court of Appeals summarily rejected seven of the eight claims, declining to rule on the fourth issue, stating: ". . .claims of ineffective assistance of trial counsel should be raised, if at all, in a motion under than 28 U.S.C. § 2255. See, United States V. Halter, 411 F.3d 949, 951 (8th Cir. 2005)(per curium)." United States v. Alonzo, 147 Fed. Appx. at 617. The Court's mandate was issued on October 14, 2005. (Doc. 743). On October 27, 2005, the Court of Appeals recalled its mandate sua sponte to afford Alonzo an opportunity to file a petition for rehearing en banc. (Doc. 744). A new mandate was issued on December 8, 2005 on an opinion affirming the trial court on all issues and reserving the issue of ineffective assistance of trial counsel for a subsequent 28 U.S.C. § 2255 motion. (Doc. 745). The deadline for filing a petition for writ of certiorari with the United States Supreme Court ran not later than March 8, 2006 without the defendant ever filing a petition for the writ.
On November 12, 2008, Alonzo filed a Motion for Extension of Time to file his first motion to vacate, set aside or correct a sentence under 28 U.S.C. § 2255 outside the one-year time limitation found in the Anti-terrorism and Effective Death Penalty Act (AEDPA). (Doc. 797). In his filing Alonzo also asserted that the one-year statute of limitations is unconstitutional under Article I, Sec. Nine, Clause 2 of the United States Constitution and the Separation of Powers Doctrine. (Doc. 797 at p. 1).
On November 13, 2008, the Court issued its order on the Motion for Extension of Time to File holding that the Court was without jurisdiction to entertain the motion unless a petition under 28 U.S.C. § 2255 was actually filed. (Doc. 798). Alonzo filed such a petition on November 17, 2008. (Doc. 804). In the petition Alonzo asserts (1) that he received ineffective assistance of counsel both at trial and on appeal; (2) that the controlled substances act is unconstitutional because it was never duly enacted because of a "lack Congressional quorum" (sic); (3) actual innocence and insufficiency of the evidence; (4) ineffective assistance of counsel at sentencing; and (5) a renewal of his previous claim that the statute of limitations is unconstitutional. Id.
28 U.S.C. § 2255 specifically provides for a one-year statute of limitations that ...