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Lima v. United States

United States District Court, S.D. Florida

November 14, 2017

JOSE LIMA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT OF MAGISTRATE JUDGE

         Introduction

         This matter is before this Court on the movant's amended motion to vacate pursuant to 28 U.S.C. §2255, attacking his sentence entered after he pled guilty to conspiracy to possess with intent to distribute a controlled substance in case number 15-20395-CR-SCOLA.

         The Court has reviewed the motion (Cv-DE# 1) and all pertinent portions of the underlying criminal file. No order to show cause has been issued because, on the face of the motion, it is evident the movant is not entitled to relief. See 28 U.S.C. § 2255(b). (“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.”).

         Construing the movant's claims liberally as afforded pro se litigants, pursuant to Haines v. Kerner, 404 U.S. 419 (1972), the movant argues that counsel “was ineffective for failing to argue at sentencing that he was entitled to a lesser sentence due to the disparity between his sentence and that of his co-defendant and the overrepresentation of his Criminal History Category.”

         Discussion

         The judgment of conviction in the underlying criminal case, No. 12-80119-CR-MIDDLEBROOKS, became final at the latest on December 21, 2015, fourteen days after entry of the judgment following sentencing, [1] when the time expired for filing a notice of appeal.[2] At the latest, the movant was required to file this motion to vacate within one year from the time the judgment became final, or no later than December 21, 2016. See Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1986). This motion was not filed until October 29, 2017, nearly two years after the conviction became final. Thus, it is not timely.

         Pursuant to 28 U.S.C. §2255, as amended April 24, 1996, a one year period of limitations applies to a motion under the section. The one year period runs from the latest of:

(1) The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(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 is prevented from filing by such governmental action;
(3) The date on which the constitutional 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 could have been discovered through the exercise of due diligence.

See 28 U.S.C. §2255(f).

         Here, it is undisputed that the instant motion was not filed within one year from the date on which the judgment of conviction became final. The movant does not allege any impediment to making the motion created by governmental action warranting application of subsection (f)(2) or that his claim is based upon a newly recognized constitutional right. He has also not alleged that his claim is based on newly discovered facts.

         With the passage of the Antiterrorism and Effective Death Penalty Act, litigants must be attentive to the time limitations for filing a motion to vacate, and make diligent efforts to file the motion within one year from the time their convictions become final. United States v. Trenkler, 268 F.3d 16, 24-27 (1st Cir. 2001); United States v. Prescott, 221 F.3d 686, 687-689 (4th Cir. 2000)(pending motion for new trial after finality of direct review does not toll AEDPA's statute of limitations); O'Connor v. United States, 133 F.3d 548 (7th Cir. 1998); Johnson v. United States, 246 F.3d 655 (6th Cir. 2001); United States v. Norris, 2000 WL 521482 (DC ...


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