United States District Court, M.D. Florida, Orlando Division
DALTON JR., United States District Judge
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
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.
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.
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).
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
(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. The Motion to Vacate, which was filed
on October 31, 2016, under the mailbox rule,  is subject to
dismissal because it was not timely filed under the one-year
period of limitation set forth in section 2255.
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. Consequently, Petitioner had until October