United States v. James Edward Johnson ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-7005
JAMES EDWARD JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-97-137, CA-99-160-5-BR)
Submitted: November 9, 1999
Decided: January 19, 2000
Before WIDENER and KING, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
James Edward Johnson, Appellant Pro Se. John Eric Evenson, II,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
James Edward Johnson seeks to appeal the district court's order
denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.
1999). Upon its initial review of the merits of Johnson's § 2255
motion, the district court summarily dismissed the motion because it
was clear that Johnson was entitled to no relief. We deny a certificate
of appealability and dismiss the appeal because Johnson's § 2255
motion was filed beyond the one year statute of limitations. See
McMahan v. International Ass'n of Bridge, Structural & Ornamental
Iron Workers, 964 F.2d 1462, 1467 (4th Cir. 1992) (an appellate court
may "affirm a judgment for any reason appearing on the record, not-
withstanding that the reason was not addressed below").
A movant has one year from the date on which the judgment of
conviction becomes final to file a motion under§ 2255. Where, as
here, a defendant does not pursue a direct appeal, the conviction
becomes final when the time expires for filing a direct appeal. See
Adams v. United States, 173 F.3d 1339, 1342 n.2 (11th Cir. 1999)
(citing Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999)).
Here, Johnson did not file a direct appeal from the criminal judgment
entered on February 13, 1998. Giving Johnson the benefit of the ten-
day appeal period, his conviction became final on February 23, 1998.
Thus, Johnson had until February 23, 1999, to file the § 2255 motion.
Because the earliest his § 2255 motion could be considered filed is
March 3, 1999, it was filed beyond the one year statute of limita-
tions.* See Houston v. Lack, 487 U.S. 266 (1988) (prisoner's notice
of appeal considered filed when delivered to prison authorities for
mailing); Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999)
(extending the rule in Houston to § 2255 motions).
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*Johnson wrote on his § 2255 motion that "2255 was submitted in
mail certified 2-8-99." However, Johnson signed the verified motion on
March 3, 1999. This date is consistent with the fact that the motion was
mailed five days later. Clearly, Johnson could not have given the motion
to prison officials on February 8 and then signed the motion almost a
month later.
2
Because Johnson's § 2255 motion was filed beyond the one-year
limitations period, we deny a certificate of appealability and dismiss
the appeal. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
3