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Smith v. United States

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

December 4, 2017

IVAN ALBERT SMITH, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Gregory A. Presnell, United States District Judge.

         This case involves a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) filed by Ivan Albert Smith, Jr. The Government filed a motion to dismiss Petitioner's § 2255 motion (Doc. 4) and a supplemental response (Doc. 15). Petitioner filed a response in opposition to the motion to dismiss (Doc. 8) but did not file a reply to the supplemental response.

         Petitioner asserts that his designation as a career offender, his conviction and sentence for possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c), and his sentence pursuant to 21 U.S.C. § 851 violate his right to due process. (Doc. 8 at 2-11). For the following reasons, the Court concludes that the motion is untimely, otherwise without merit, and must be dismissed.

         I. Procedural History

         Petitioner was charged by indictment with possession of a firearm by a convicted felon (Count One) in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), distribution and possession with intent to distribute five grams or more of cocaine (Count Two) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and possessing a firearm in furtherance of a drug trafficking crime (Count Three) in violation of 18 U.S.C. § 924(c). (Criminal Case No. 6:10-cr-202-Orl-31KRS, Doc. 1).[1] Petitioner pled guilty to all counts. (Id. at Doc. Nos. 62, 67, 90). On February 3, 2011, this Court entered Judgment, sentencing Petitioner to concurrent 72-month terms of imprisonment for Counts One and Two and to a consecutive 60-month term of imprisonment for Count Three. (Id. at Doc. 71). The Government appealed but subsequently moved to dismiss the appeal. The Eleventh Circuit Court of Appeals dismissed the appeal with prejudice on August 10, 2011. (Id. at Doc. 80).

         II. Analysis

         Pursuant to 28 U.S.C. § 2255, the time for filing a motion to vacate, set aside, or correct a sentence is restricted, as follows:

         A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of --

(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).

         Under the time limitation set forth in § 2255(f)(1), Petitioner had one year from the date his conviction became final to file a ' 2255 motion. Petitioner's conviction became final on November 8, 2011. See Clay v. United States,537 U.S. 522, 525 (2003) (“[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction.”); Sup.Ct. R. 13.3 (the time to file a petition for writ of certiorari runs from the date of the entry of judgment or order sought to be reviewed, not the date mandate is issued). Thus, ...


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