This week, the Sixth Circuit published a decision in United States v. Asakevich disagreeing with the Third Circuit about a district court's jurisdiction to grant a request to extend time to file a 28 U.S.C. § 2255 motion before the motion is filed.
Federal prisoners generally have one year to file a motion to vacate their sentences. 28 U.S.C. § 2255(f). In Asakevich, as the deadline approached,the defendant asked the court for a 90-day extension. The Sixth Circuit affirmed the district court’s conclusion that it lacked authority to grant the extension motion, since there was no live case or controversy at the time of his request.
Federal prisoners generally have one year to file a motion to vacate their sentences. 28 U.S.C. § 2255(f). In Asakevich, as the deadline approached,the defendant asked the court for a 90-day extension. The Sixth Circuit affirmed the district court’s conclusion that it lacked authority to grant the extension motion, since there was no live case or controversy at the time of his request.
The court recognized that its opinion conflicts with the Third Circuit’s decision in United States v. Thomas, 713 F.3d 165, 173–74 (3d Cir. 2013). There, the Third Circuit held that district courts have jurisdiction to consider preemptive motions to extend time for § 2255 motions because, unlike petitions under § 2254, § 2255 motions are a continuation of the defendant’s federal criminal case. In rejecting this reasoning, the Sixth Circuit looked to the policies underlying § 2255 and concluded that there was no persuasive basis for distinguishing it from § 2254 for these purposes.
The court recognized in closing, however, that a pro se extension motion could provide sufficient details about the proposed § 2255 action to fairly construed it as an initial § 2255 pleading. It also noted that a failed pro se extension motion may provide support for an equitable tolling argument.
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