United States of America v. Johnson et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
-vs- 	) 	Case No. CR-14-342-C
)
MAURICE M. JOHNSON, 	)
)
Defendant. 	)
MEMORANDUM OPINION AND ORDER
Defendant filed the present motion seeking additional time to file his 28 U.S.C.
§ 2255 motion. 	In support of his request, Defendant asserts he is unable to file his
§ 2255 	Motion 	because 	prison 	conditions 	have 	prevented 	him 	from 	doing 	needed
research.
In United States v. Leon, 203 F.3d 162 (2d Cir.2000), the Second Circuit held that
“a federal court lacks jurisdiction to consider the timeliness of a § 2255 petition until a
petition is actually filed.” 	Id. at 164. 	Prior to an actual filing, “there is no case or
controversy to be heard, and any opinion we were to render on the timeliness issue would
be merely advisory.” 	Id. 	The Tenth Circuit followed this reasoning in United States v.
Verners, 15 F. App’x 657 (10th Cir. 2001). 	Thus, the applicable precedent holds that
additional 	time 	to 	file 	a 	§ 2255 	Motion 	can 	be 	granted 	only 	where 	Defendant
(1) “requests the extension upon or after filing an actual section 2255 motion, and
(2) ‘rare and exceptional’ circumstances warrant equitably tolling the limitations period.”
Green v. United States, 260 F.3d 78, 82-83 (2d Cir. 2001).
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Defendant’s Motion fails at the first element, as he has not filed a § 2255 Motion.
A Court is permitted to construe a filing as a § 2255 Motion even where it is labeled
differently. 	See 	Castro 	v. 	United 	States, 	540 	U.S. 	375, 	377 	(2003). 	However,
Defendant must describe or allude to a cognizable § 2255 claim. 	Defendant’s Motion
does neither, and so cannot be liberally construed.
For the reasons set forth herein, Defendant’s Motion for Extension of Time (Dkt.
No. 107) is DENIED.
IT IS SO ORDERED this 6th day of August, 2018.
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