Ewing v. United States
- Vincent Briccetti
- 7:21-cv-09750
- U.S. District Court · Southern District of New York
- 18
In Ewing v. United States, Judge Briccetti gave Ewing 60 days to file a sentence-challenge motion but warned it appeared untimely.
Takiem Ewing, the federal prisoner seeking permission and forms to file a motion challenging his conviction and sentence; the United States would respond if the court later ordered an answer.
What happened
Ewing v. United States concerns Takiem Ewing’s request for a form and instructions to challenge his federal conviction and sentence. He had pleaded guilty to two counts of carjacking resulting in death and one count of possessing and providing prison contraband, and received a 384-month sentence.
The court explained that Ewing’s conviction became final on July 5, 2019, and that the one-year deadline for a motion under 28 U.S.C. § 2255 expired on July 6, 2020. Because Ewing had not yet filed that motion, the court did not decide whether he was entitled to relief; it stated that a future motion would likely be denied as untimely unless he showed grounds for extending the deadline.
Judge Vincent L. Briccetti granted Ewing 60 days from the order to file a formal motion presenting his grounds and explaining why he could not file sooner. The court also declined to issue a certificate allowing an appeal and denied permission to appeal without paying the filing fee.
The detailed version
- Ewing v. United States · No. 7:21-cv-09750
- Vincent Briccetti
- Nov. 29, 2021
Background
Takiem Ewing, who was incarcerated at U.S.P. McCreary, pleaded guilty in the related criminal case to two counts of carjacking resulting in death and one count of possessing and providing contraband in prison. The court sentenced him to 384 months of incarceration. Ewing did not appeal the judgment of conviction.
The Clerk’s Office received Ewing’s undated submission on November 22, 2021. He asked the court to provide a form and instructions for filing a motion under 28 U.S.C. § 2255. That statute allows a federal prisoner to challenge a conviction or sentence on specified constitutional, legal, jurisdictional, or other grounds recognized by the statute.
Timeliness discussion
The court explained that a § 2255 motion generally must be filed within one year of the latest of several events, including when the conviction becomes final. Ewing’s judgment was entered on June 20, 2019. Because he did not appeal, the court determined that his conviction became final when the appeal period expired on July 5, 2019. The one-year limitations period therefore expired on July 6, 2020.
Ewing had not filed a § 2255 motion at the time of the order. The court stated that any motion he might later file would likely be denied as untimely unless he established circumstances supporting equitable tolling, meaning an extension of the deadline for exceptional reasons. The court identified the need to show that he had pursued his rights diligently and that an extraordinary circumstance prevented an earlier filing.
Ruling
Judge Vincent L. Briccetti granted Ewing 60 days from the order, through January 28, 2022, to file a formal § 2255 motion. The motion had to state all grounds for relief, provide supporting facts, and include facts explaining any inability to file earlier. The court directed Ewing to use the attached form and stated that it would later review the motion for substantive sufficiency. The court did not require the government to respond at that time.
The court also stated that Ewing had not made a substantial showing that a constitutional right had been denied, so it would not issue a certificate of appealability. It certified that an appeal would not be taken in good faith and denied permission to appeal without paying the filing fee. The order did not decide the merits of any § 2255 claim because Ewing had not yet filed one.
Read the full 18-page opinion on CourtListener, the free public archive maintained by the Free Law Project.