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Smith v. United States

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

December 11, 2017

SHANTERICA SMITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          ROY B, DALTON JR., 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. The Government filed a Response in Opposition to the Motion to Vacate (“Response, ” Doc. 5) 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. 6) and a Supplemental Reply (Doc. 8) to the Response. For the reasons set forth herein, the Motion to Vacate will be denied as untimely.

         I. Procedural Background

         The United States Attorney charged Petitioner by Information (Criminal Case Doc. 13) with one count of fraud in connection with possession of a means of identification of another person (Count One). (6:13-cr-293-Orl-37DCI, Doc. 13).[1] Petitioner entered into a Plea Agreement (Criminal Case Doc. 19) in which she agreed to enter a plea of guilty to Count One of the Information. Petitioner entered her plea before Magistrate Judge David A. Baker, who filed a Report and Recommendation Concerning Plea of Guilty (Criminal Case Doc. 26) recommending that the Plea Agreement and the guilty plea be accepted and that Petitioner be adjudged guilty and have sentence imposed accordingly.

         The Court then entered an Acceptance of Plea of Guilty, Adjudication of Guilt, and Notice of Sentencing (Criminal Case Doc. 27) in which the guilty plea was accepted and Petitioner was adjudicated guilty of the offense. On March 6, 2014, the Court entered a Judgment in a Criminal Case (Criminal Case Doc. 38) in which Petitioner was sentenced to imprisonment for a term of sixty months, to be followed by supervised release for a total term of three years. Petitioner appealed, and, on July 14, 2014, the Eleventh Circuit Court of Appeals granted Petitioner's motion for voluntary dismissal, dismissed the appeal, and issued the mandate. (Criminal Case Doc. 54).

         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. The Motion to Vacate, which was filed on October 31, 2016, under the mailbox rule, [2] is subject to dismissal because it was not timely filed under the one-year period of limitation set forth in section 2255.

         III. Analysis

         In the present case, the Eleventh Circuit Court of Appeals dismissed Petitioner's appeal on July 14, 2014. Petitioner then had ninety days to petition the United States Supreme Court for certiorari. See Rule 13 of The Rules of the Supreme Court of the United States (the 90-day period runs from the date of the entry of the judgment and not from the issuance date of the mandate). Petitioner did not do so, and the judgment of conviction became final on October 13, 2014.[3] Consequently, Petitioner had until October ...


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