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Anchico-Mosquera v. United States

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

October 24, 2017

OMAR ANTONIO ANCHICO-MOSQUERA
v.
UNITED STATES OF AMERICA

          ORDER

          SUSAN C. BUCKLEW, United States District Judge

         This cause comes before the Court on Petitioner Omar Antonio Anchico-Mosquera's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Civ. Doc. 1; Crim. Doc. 250). Because review of the motion conclusively demonstrates that Petitioner is not entitled to relief, the Court will not cause notice thereof to be served upon the United States Attorney but shall proceed to address the matter directly. See 28 U.S.C. § 2255(b).

         I. Background

         Petitioner was found guilty by a jury of conspiracy to possess with intent to distribute cocaine base and possession with intent to distribute cocaine base. Petitioner was held accountable for 250 grams of cocaine base and, due to his four prior drug felonies, was sentenced to a mandatory term of life imprisonment on March 4, 1994. Petitioner's sentence and conviction were affirmed by the Eleventh Circuit Court of Appeals on December 5, 1997.

         On March 22, 1999, Petitioner filed his first § 2255 motion (Crim. Doc. 103). This Court dismissed that motion as time barred on April 28, 1999. (Crim. Doc. 106). The Eleventh Circuit affirmed this dismissal. (Crim. Doc. 120). Petitioner then filed this second § 2255 motion, which is dated August 5, 2017. (Civ. Doc. 1; Crim. Doc. 250).

         II. Discussion

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a mandatory, one-year period of limitation for § 2255 motions, which runs from the latest of the following events:

(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)(1)-(4). Petitioner's § 2255 motion is dated August 5, 2017, and it is deemed to have been filed on that date. See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (explaining a prisoner's § 2255 motion is considered filed on the date it is delivered to prison authorities for mailing which, absent evidence to the contrary, is presumed to be the date the prisoner signed it).

         In Clay v. United States, the Supreme Court held that, “for federal criminal defendants who do not file a petition for certiorari with [the Supreme] Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires.” 537 U.S. 522, 532 (2003). In turn, Supreme Court Rule 13(3) provides: “The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed . . . .”

         The Eleventh Circuit entered its judgment affirming Petitioner's conviction on December 5, 1997. Petitioner then had 90 days-until March 5, 1998-in which to petition the Supreme Court for a writ of certiorari. On that date, Petitioner's conviction became final for purposes of the limitation period, and he had one year in which to file a motion under § 2255. This § 2255 motion is dated August 5, 2017, ...


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