United States District Court, S.D. Florida
REPORT OF MAGISTRATE JUDGE
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.
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
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.”
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,  when the time expired for filing a notice
of appeal. 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.
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
See 28 U.S.C. §2255(f).
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.
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 ...