Gillis v. United States

In 2007, Gillis was convicted of possession with intent to distribute 4.12 grams of crack cocaine within 1,000 feet of a school, 21 U.S.C.841(a)(1), (b)(1)(C), and 860(a) and sentenced to 262 months of imprisonment. On remand for reconsideration of the career-offender sentencing guidelines, in 2009, the district court resentenced Gillis to 191 months. Six months after the deadline to appeal his resentencing, Gillis wrote to the judge, acknowledging that his appeal was not timely and requesting that the court permit late appeal. His attorney subsequently filed a belated notice of appeal. The Sixth Circuit dismissed that appeal as untimely filed. Gillis filed a pro se motion to set aside his sentence under 28 U.S.C. 2255, claiming ineffective assistance of counsel because his attorney did not timely appeal. Gillis did not respond to a motion to dismiss. The district court dismissed because Gillis had not filed his 2255 motion within the one-year limitation period. The Sixth Circuit held that, although Gillis did not file his appeal for 201 days, there was appellate jurisdiction; when a district court fails to issue a separate judgment in denying a 2255 motion, a petitioner effectively has 210 days to submit an appeal. However, the district court properly dismissed Gillis’s 2255 motion as time-barred under 2255(f). View "Gillis v. United States" on Justia Law