United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE.
cause is before the Court on the Motion to Vacate, Set Aside,
or Correct Sentence (“Motion to Vacate, ” Doc. 1)
filed by Petitioner pursuant to 28 U.S.C. § 2255.
Petitioner also filed a Memorandum of Law (Doc. 2) in support
of the Motion to Vacate. The Government filed a Response in
Opposition to the Motion to Vacate (“Response, ”
Doc. 8) in compliance with this Court's instructions and
with the Rules Governing Section 2255 Proceedings for the
United States District Courts. Petitioner filed a Reply
(Doc. 10) to the Response. For the reasons set forth herein,
the Motion to Vacate is denied as untimely.
number 6:14-cr-83-Orl-31KRS, a Grand Jury charged Petitioner
and another individual in a thirteen count Indictment with
the commission of various crimes. (Criminal Case
6:14-cr-83-Orl-31KRS, Doc. 1). In case number
6:14-cr-84-Orl-31KRS, a Grand Jury charged Petitioner and two
other individuals in a twenty-four count Indictment with the
commission of various crimes. (Criminal Case No.
6:14-cr-84-Orl-31KRS, Doc. 1).
number 6:14-cr-83-Orl-31KRS, Petitioner entered guilty pleas
to Counts Three, Ten, and Thirteen. In case number
6:14-cr-84-Orl-31KS, Petitioner entered a guilty plea to
Count One. On December 16, 2014, the Court adjudicated
Petitioner guilty of the crimes and sentenced him to
imprisonment for a total term of 101 months. (Criminal Case
6:14-cr-83-Orl-31KRS, Doc. 102; Criminal Case
6:14-cr-84-Orl-31KRS, Doc. 100). Petitioner did not file a
direct appeal with regard to either case. The Motion to
Vacate was filed on January 17, 2017, under the mailbox
motion under section 2255 must be filed within one-year from
the latest of the following:
(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.
Motion to Vacate is subject to dismissal because it was not
timely filed under the one-year period of limitation set
forth in section 2255. As already noted, the judgments of
conviction were entered by the Court on December 16, 2014.
Because no appeal was filed, the judgments of conviction
became final fourteen days after the entry of judgment by the
Court. See Mederos v. United States, 218 F.3d 1252,
1253 (11th Cir. 2000) (holding that a conviction that is not
appealed becomes final when the time allotted for filing an
appeal expires). Thus, Petitioner's conviction became
final on December 30, 2014. As a ...