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Jackson v. United States

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

September 5, 2017

ERIC JACKSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          GREGORY A. PRESNELL JUDGE

         This case involves a motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 filed by Eric Jackson (Doc. 1). The Government filed a response to the § 2255 motion in compliance with this Court's instructions and with the Rules Governing Section 2255 Proceedings for the United States District Courts (Doc. 4). Petitioner filed a reply (Doc. 5).

         Petitioner alleges one claim 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.

         I. Background

         Petitioner was charged by indictment with two counts of aiding and abetting in a bank robbery in violation of 18 U.S.C. § 2113(a) (counts three and five) and two counts of knowingly using and carrying a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A) and (c)(3) (counts four and six) (Criminal Case No. 6:09-cr- 223-Orl-31GJK, Doc. 27).[1] Petitioner pled guilty to the counts as charged in the indictment (Criminal Case Doc. 136). Magistrate Judge Kelly entered a Report and Recommendation, recommending that the guilty plea be accepted (Criminal Case Doc. 149). The Court accepted the guilty plea and adjudicated Petitioner guilty (Criminal Case Doc. 156). On May 11, 2010, the Court sentenced Petitioner to concurrent twelve-month terms of imprisonment for counts three and five, to a consecutive twelve-month term of imprisonment for count four, and to a consecutive three hundred-month term of imprisonment for count six (Criminal Case Doc. Nos. 215 and 253). Judgment was entered on May 12, 2010 (Criminal Case Doc. 226). Petitioner did not appeal. Petitioner filed his motion to vacate, set aside, or correct sentence on June 23, 2016.[2]

         II. Timeliness

         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(f).

         In the present case, Petitioner's conviction and sentence became final on May 26, 2010, or the date Petitioner's time for seeking a direct appeal expired. See Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011); Fed. R. App. P. 4(b)(1)(A)(i) (providing a criminal defendant's notice of appeal must be filed in the district court within fourteen days after the entry of judgment or order appealed). Petitioner had one ...


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