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Chery v. United States

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

August 16, 2017

HUSSEIN SMITH CHERY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          ROY B. TALTON, 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 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.

         Petitioner alleges one ground for relief, counsel rendered ineffective assistance by failing to explain the deportation consequences of pleading guilty.[1] For the following reasons, the Court concludes that the motion is untimely and must be dismissed.

         I. Procedural History

         Petitioner 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).[2] 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.

         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 exercise of due diligence.

28 U.S.C. § 2255(f).

         Under 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 ...


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