This case involves a motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 filed by George Manders (Doc. No. 1). The Government filed a response to the section 2255 motion in compliance with this Court's instructions and with the Rules Governing Section 2255 Proceedings for the United States District Courts. (Doc. No. 8). Petitioner filed a response to the reply (Doc. No. 12).
Petitioner alleges two claims for relief, however, as discussed hereinafter, the Court finds that the motion to vacate, set aside, or correct sentence is untimely and must be denied.
Petitioner was charged by information with one count of knowingly receiving and distributing child pornography in violation of 18 U.S.C. § 2252(a)(2)(A) & (b)(1) (Criminal Case No. 6:05-cr-173-Orl-31GJK, Doc. No. 9).*fn1 On November 23, 2005, Petitioner entered into a guilty plea to the charge (Criminal Case Doc. Nos. 30 & 65). The Court conducted a sentencing hearing on February 15, 2006, and sentenced Petitioner to a 240-month term of imprisonment to be followed by five years of probation (Criminal Case Doc. No. 38). On February 16, 2006, this Court entered a Judgment in the criminal case (Criminal Case Doc. No. 42). Petitioner appealed (Criminal Case Doc. Nos. 43 & 51), and the appeal was voluntarily dismissed by Petitioner on June 6, 2006 (Criminal Case Doc. No. 58).
II. Petitioner's Section 2255 Motion is Untimely
Pursuant to 28 U.S.C. § 2255, the time for filing a motion to vacate, set aside, or correct a sentence is restricted, as follows:
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 application 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.
28 U.S.C. § 2255. The Government contends that Petitioner's motion is subject to dismissal because it was not timely filed under the one-year limitation of section 2255.
Petitioner appealed his conviction but voluntarily dismissed the appeal before the Eleventh Circuit Court of Appeals considered the case. The Eleventh Circuit has not addressed the issue of when a conviction becomes final after a direct appeal is voluntarily dismissed. See Baskin v. United States, No. 8:10-cv-1721-T-24TBM, 2011 WL 794821, at *1 (M.D. Fla. Mar. 1, 2011). However, some federal district courts have ruled that when a criminal defendant files a direct appeal and later voluntarily dismisses that appeal, the judgment is deemed final 90 days after the dismissal of that appeal. See United States v. Reed, No. 3:08cr20/MCR, 2011 WL 2038627, at *3 (N.D. Fla. Apr. 4, 2011); Baskin, 2011 WL 794821, at *1; Lehet v. United States, No. 8:03-cv-297-T-17TGW, 2007 WL 186801, at *1 (M.D. Fla. Jan. 22, 2007).*fn2
In the present case, the appellate court entered its order dismissing Petitioner's appeal on June 6, 2006. Petitioner then had ninety days, or through September 4, 2006, to petition the Supreme Court of the United ...