United States District Court, M.D. Florida, Orlando Division
DALTON JR. UNITED STATES DISTRICT JUDGE
case involves a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) filed by
Hussein Smith Chery. The Government filed a response in
opposition to the section 2255 motion (Doc. 8). Petitioner
was provided an opportunity to file a reply to the response
but did not do so.
alleges one ground for relief, counsel rendered ineffective
assistance by failing to explain the deportation consequences
of pleading guilty. For the following reasons, the Court
concludes that the motion is untimely and must be dismissed.
was charged by indictment with mail fraud (Counts One through
Ten), presenting false and fraudulent claims to the United
States Department of the Treasury (Counts Eleven through
Sixteen), theft of government property (Count Seventeen), and
access device fraud (Count Eighteen). (Criminal Case No.
6:13-cr-120-Orl-37TBS, Doc. 15). Pursuant to a plea
agreement, Petitioner entered a plea of guilty to Counts
Seven, Eight, and Eighteen. (Id. at Doc. 32).
Magistrate Judge Thomas B. Smith filed a Report and
Recommendation, recommending that the plea be accepted and
that Petitioner be adjudicated guilty of Counts Seven, Eight,
and Eighteen. (Id. at Doc. 36). The Court accepted
the plea and adjudicated Petitioner guilty of Counts Seven,
Eight, and Eighteen. (Id. at Doc. 39). On September
12, 2013, this Court entered Judgment, sentencing Petitioner
to concurrent 24-month terms of imprisonment to be followed
by a three-year term of supervised release. (Id. at
Doc. 47). The Government dismissed the remaining counts.
(Id.). Petitioner did not appeal.
to 28 U.S.C. § 2255, the time for filing a motion to
vacate, set aside, or correct a sentence is restricted, as
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(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
(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.
28 U.S.C. § 2255(f).
the time limitation set forth in § 2255(f)(1),
Petitioner had one year from the date his conviction became
final to file a § 2255 motion. Petitioner's Judgment
was entered on September 12, 2013, and he did not file a
direct appeal. Therefore, his conviction became final on
September 26, 2013, when the time for filing an appeal
expired. See Mederos v. United States, 218 F.3d
1252, 1253 (11th Cir. 2000) (a conviction which is not
appealed becomes final when the time allowed for filing an
appeal expires); see also Fed. R. App. P. 4(b); Fed.
R. App. P. 26(a). Thus, Petitioner had through September 27,
2014, to timely file his § 2255 motion under §
2255(f)(1). However, the instant proceeding was not filed
until July 15, 2016, under the mailbox rule. Adams v.
United States, 173 F.3d 1339, ...