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Bardell v. United States

United States District Court, M.D. Florida, Orlando Division

May 10, 2017

FREDERICK MERVIN BARDELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Roy B. Dalton, Jr. United States District Judge

         This case involves a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) filed by counsel on behalf of Frederick Mervin Bardell. The Government filed a response to the motion (Doc. 17). Petitioner filed a reply to the Government's response (Doc. 18).

         Petitioner asserts one claim for relief, that counsel rendered ineffective assistance by failing to file an appeal after being instructed to do so. For the following reasons, the motion is denied as untimely.

         I. Procedural History

         Petitioner was charged by indictment with distribution of child pornography (Count One) in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1) and possession of child pornography (Count Two) in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). (Criminal Case No. 6:11-cr-401-Orl-37DAB, Doc. 1).[1] Pursuant to a plea agreement, Petitioner pled guilty to Count One and the Government dismissed Count Two. (Criminal Case Doc. 32). The Court sentenced Petitioner to a 141-month term of imprisonment. (Criminal Case Doc. 59). Judgment was entered on June 26, 2012. (Id.).

         Petitioner did not appeal his conviction or sentence. Petitioner initiated the instant action on May 9, 2016. (Doc. 1).

         II. Analysis

         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 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 ...

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