Opinion
Case No. 2:04CV196 DAK.
June 7, 2004
ORDER
This matter is before the court on Petitioner's Motion Vacate Sentence, filed pursuant to 28 U.S.C. § 2255. Petitioner is seeking to vacate a sentence that was imposed by this court in Case No. 2:01CR565. On October 25, 2002, Petitioner was sentenced to 120 months in the custody of the Bureau of Prisons, after pleading guilty to Possession of a Firearm by a Convicted Felon, 18 U.S.C. § 922(g)(1).
Under 28 U.S.C. § 2255, a prisoner in custody can move the court to vacate, set aside, or correct a sentence if the sentence was unconstitutional, illegal, in excess of the maximum authorized by law, or otherwise subject to collateral attack. However, the statute of limitations for such a motion is one year form the date on which the judgment of conviction becomes final. United States v. Burch, 202 F.3d 1274, 1275 (10th Cir. 2000). In this case, Petitioner's motion is time-barred under § 2255. He was sentenced by this court on October 25, 2002, and his § 2255 petition was not filed until February 25, 2004.
On December 12, 2003, this court denied Petitioner's motion for an extension of time to file an appeal because that motion was untimely. The court also ruled that Petitioner's accompanying motion for discovery and application of the Jenks Act was also untimely. In a Motion for Reconsideration, filed on May 12, 2004, Petitioner claims that this court should construe his Motion for Extension of Time to File Appeal, filed on October 6, 2003, as a motion to extend time to file his § 2255 because that was his intention in the original motion and he did not receive notice of the December 12, 2003 Order until May 5, 2003. The court, however, declines to do so.
Even if the court reached the merits of Petitioner's claim, however, the petition would still be denied. Petitioner claims that he was denied effective assistance of counsel because his counsel declined to appeal Petitioner's conviction on the ground that it violated Petitioner's Second Amendment right to bear arms. Petitioner contends that 18 U.S.C. § 922(g)(1) is unconstitutional. As the Tenth Circuit Court of Appeals has found, "[i]n order to establish a violation of the right to bear arms under the Second Amendment, one must establish the following elements: (1) that he is part of a state militia; (2) the militia, and his participation therein, is "well regulated" by the state; (3) the guns in question are used by that militia; and (4) his possession of the guns was reasonably connected to his militia service." United States of America v. Bayles, 310 F.3d 1302 (citing United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001)); see also United States v. Baer, 235 F.3d 561 (10th Cir. 2001) (rejecting Second Amendment challenge to § 922(g)(1)); United States v. Henry, 288 F.3d 657, 663 (5th Cir. 2002) (rejecting Second Amendment challenge to § 922(g)(8)); United States v. Napier, 233 F.3d 394, 403-04 (6th Cir. 2000) (same). Because Petitioner has failed to offer evidence or argument in support of any of these elements, his Second Amendment challenge fails.
Similarly, the Tenth Circuit has also rejected Commerce Clause challenges to § 922(g). See Bayles, 310 F.3d at 1307; United States v. Dorris, 236 F.3d 582, 586 (10th Cir. 2000). Thus, Petitioner's Commerce Clause argument also lacks merit.
Because Petitioner has failed to satisfy the elements necessary to demonstrate that his counsel was ineffective in failing to challenge the constitutionality of 18 U.S.C. § 922(g)(1), Petitioner's § 2255 petition is denied.
Accordingly, IT IS HEREBY ORDERED that Petitioner's Motion for Reconsideration [docket #3] is DENIED, and Petitioner's Motion to Vacate Sentence [docket # 1] is DENIED.