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Favors v. United States

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

November 8, 2017

MARKEYO ALEXANDER FAVORS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Procedural Background

         In case 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).

         In case 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 rule.[1]

         II. Legal Standard

         A 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 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.

         III. Analysis

         The 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 ...


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