United States District Court, M.D. Florida, Orlando Division
Gregory A. Presnell, United States District Judge.
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.
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
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). 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).
to 28 U.S.C. § 2255, the time for filing a motion to
vacate, set aside, or correct a sentence is restricted, as
1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(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(f).
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,