United States v. Perry

          MEMORANDUM AND ORDER

          JOHN J. MCCONNELL, JR., United States District Judge.

         George Perry has petitioned this Court pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his judgment of conviction, entered after a jury found him guilty of racketeering and related offenses from over 20 years ago. He claims that he is entitled to a new trial based on newly discovered evidence of witness collusion and government misconduct. Mr. Perry has also filed a motion to amend his § 2255 motion. The Court finds that Mr. Perry's Motion to Vacate is untimely and thus DENIES and DISMISSES his petition. The Motion to Amend is DENIED.

         FACTS

         Following a two-year investigation, on September 21, 1995, a federal grand jury sitting in the District of Rhode Island indicted Mr. Perry and others on charges of violations of the Racketeer Influenced Corrupt Organizations Act ("RICO"), conspiracy to commit racketeering, two counts of violent crime (murder) in aid of racketeering, two counts of conspiracy to commit murder, carjacking, and two counts of use of a firearm during and in relation to a crime of violence, based on their involvement in the Providence chapter of the Almighty Latin King Nation. A Superseding Indictment followed.

         On April 10, 1997, after a lengthy jury trial, Mr. Perry was convicted on all but one count with which he was charged. He was sentenced on September 23, 1997, to, among other penalties, three concurrent and two additional consecutive terms of life imprisonment. Judgment entered on October 2, 2007.

         Mr. Perry appealed his convictions, and, in an opinion issued on June 30, 1999, the Court of Appeals affirmed the judgments. United States v. Lara, 181 F.3d 183, 190 (1st Cir. 1999). The United States Supreme Court denied further review on January 18, 2000. Perry v. United States, 528 U.S. 1127 (2000) (mem.).

         LAW

         Section 2255 provides for post-conviction relief only if the court sentenced a petitioner in violation of the Constitution or lacked jurisdiction to impose his sentence, if the sentence exceeded the statutory maximum, or if the sentence is otherwise subject to collateral attack. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). In attempting to collaterally attack his sentence, the petitioner bears the burden of demonstrating "exceptional circumstances" that warrant redress under § 2255. See Hill v. United States, 368 U.S. 424, 428 (1962); Mack v. United States, 635 F.2d 20, 26-27 (1st Cir. 1980). For example, an error of law must constitute a "fundamental defect which inherently results in a complete miscarriage of justice." Hill, 368 U.S. at 428; accord David, 134 F.3d at 474.

         ANALYSIS

         A. Timeliness

         Section 2255 provides that:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of"

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action!

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the ...