United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on review of petitioner's
Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or
Correct Sentence by a Person in Federal Custody (Cv. Doc. #1;
Cr. Doc. #259) and Memorandum of Law in Support of §
2255 Motion (Cv. Doc. #2), both filed on February 21, 2017.
The government filed a Response in Opposition (Doc. #8) on
May 1, 2017. Petitioner presents only one ground for relief
arguing for the retroactive application of Amendment 794 of
the United States Sentencing Guidelines.
30, 2008, a federal grand jury in Fort Myers, Florida
returned a three-count Indictment (Cr. Doc. #1) charging
petitioner and others with conspiracy to possess with intent
to distribute more than 500 grams of methamphetamine, and
possession with intent to distribute more than 500 grams of
methamphetamine. Defendant was further individually charged
with knowingly carrying a firearm during and in relation to a
drug trafficking crime, and in furtherance of the drug
trafficking crime of conspiracy to possess and possession
with intent to distribute more than 500 grams of
methamphetamine. On April 20, 2009, defendant entered a plea
of guilty as to Counts Two and Three of the Indictment. (Doc.
#153.) The plea was accepted on the next day. (Doc. #156.) On
July 20, 2009, Count One was dismissed upon motion of the
United States, and the Court sentenced petitioner to a term
of imprisonment of 135 months of imprisonment as to Count
Two, and a term of 60 months of imprisonment as to Count
Three, to be served consecutively to Count Two, followed by a
term of supervised release. (Cr. Doc. #191.) Judgment (Cr.
Doc. #192) was filed on July 20, 2009. Petitioner filed a
Notice of Appeal (Cr. Doc. #196), and the Eleventh Circuit
affirmed the convictions on May 28, 2010. United States
v. Flores, 380 F.App'x 921 (11th Cir. 2010).
November 14, 2016, the Court denied a motion for the
retroactive application of Amendment 782 to the United States
Sentencing Guidelines finding petitioner's sentence would
remain unchanged. (Cr. Doc. #257.) Petitioner filed his
motion under § 2255 on February 21, 2017.
prisoners whose convictions became final after April 24,
1996, the effective date of The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), have one year from the
latest of any of four events to file a § 2255 Motion:
(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
(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). In this case, the Eleventh Circuit
affirmed petitioner's convictions on May 28, 2010.
Whether or not petitioner files a petition for certiorari, he
“gets the benefit of up to 90 days between the entry of
judgment on direct appeal and the expiration of the
certiorari period.” Kaufmann v. United
States, 282 F.3d 1336, 1338 (11th Cir. 2002).
Therefore, petitioner's convictions became final ninety
days after they were affirmed, and petitioner had through
August 29, 2011, to file his federal habeas petition. Giving
petitioner the benefit of the mailbox rule, the motion under
§ 2255 was signed and executed on February 17, 2017. As
a result, the motion is untimely from the date
petitioner's conviction became final, 28 U.S.C. §
2255(f)(1) and is due to be dismissed as time-barred. The
Court will also consider whether a later date may apply under
argues that his motion is timely under § 2255(f)(4)
because it was filed within one year of when facts became
available. (Cv. Doc. #1, p. 10, ¶ 18.) Petitioner does
not further expand on what facts were unavailable, or whether
the facts were “discovered through the exercise of due
diligence.” 28 U.S.C. § 2255(f)(4). Therefore,
this argument is rejected. The other two bases, subsections
(2) and (3) have no applicability in this case. Petitioner
was not prevented from filing his petition by an impediment
of the government, and petitioner seeks the retroactive
application of a Sentencing Guidelines amendment ...