Bernard Gooden was convicted of narcotics related charges in 1993. Three years later the Eleventh Circuit denied his appeal finalizing his conviction. In 2006 the Court granted the government’s motion to reduce his prison term based upon his provision of substantial assistance to the government for helping in the prosecution of other individuals pursuant to Fed. R. Crim. P. 35(b).

In February 2008 he filed a pro se “motion to modify” his sentence. Without notifying him the Court considered the motion to be a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The motion was denied and he did not appeal. The problem with this is that under the Antiterrorism and Effective Death Penalty Act which rewrote the habeas corpus rules a defendant is only entitled to one writ of habeas corpus. All issues must be raised in a single pleading. By failing to notify Gooden that his motion was being classified as a writ of habeas corpus, the court was precluding him from raising other issues in a future writ.

In June 2008 he filed another pro se motion. This time he asked the court to compel the government to file another 35(b) motion. The trial court again recharacterized the motion as a writ of habeas corpus and denied the motion without considering the merits on the grounds that the previous request for a writ precluded a second petition. Gooden appealed. The court ruled that prior to characterizing a pro se motion as a writ of habeas corpus a defendant must be given notice and a chance to withdraw his/her motion.

The government had no objection to this. But it argued that both of Gooden’s petitions violated another provision of the Antiterrorism and Effective Death Penalty Act in that the petitions were filed over one year after the conviction became final. But the Court ruled that an exception in the Act may result in more than one petition and that in some case a timely petition may follow an untimely petition. Under 28 U.S.C. § 2255(f) the year begins to run after after the most recent 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 exercise of due diligence

Therefore it is possible that a petition may be filed within a year of one of the above events and another of the 2255(f) events occurs allowing a subsequent petition to be filed. As a result the court refused to authorized an exception to the rule requiring notice of the recharacterization of a motion as a habeas when the first petition was untimely. It returned the petition to the trial court with instructions to allow Gooden to withdraw or amend his motion prior to considering it on the merits.
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