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United States v. Durdley

United States District Court, N.D. Florida, Gainesville Division

February 5, 2018

UNITED STATES OF AMERICA
v.
OCTAVIUS LEE DURDLEY Reg. No. 20647-017

          REPORT AND RECOMMENDATION

          GARY R. JONES, United States Magistrate Judge

         This matter is before the court upon Petitioner Octavius Lee Durdley's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and supporting memorandum of law. (ECF No. 125.) Rule 4(b) of the Rules Governing Section 2255 Proceedings provides in part that “[i]f it plainly appears from the face of the motion and any attached exhibits and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." After a review of the record, the Court concludes that the motion is untimely and therefore it should be summarily dismissed.

         BACKGROUND and ANALYSIS

         Octavious Lee Durdley was convicted after a jury trial of receipt or distribution or attempted receipt or distribution of child pornography (“Count One”), and possession of child pornography (“Count Two”). (ECF No. 53.) Durdley continued to deny his guilt of the offense conduct, and even his father said at sentencing that Durdley did not think he had done anything wrong. (ECF No. 82, PSR ¶ 25; ECF No. 103 at 13, 17-18.)[1] The applicable advisory guidelines range was 210 to 262 months, but there was a 240-month statutory maximum sentence on Count One and 120 months as to Count Two. (ECF No. 82, PSR ¶¶ 70, 71.) The district court noted Durdley's limited criminal history and low risk of recidivism and imposed a below guidelines term of 136 months on Count One and 120 months on Count Two. (ECF No. 103 at 24; ECF Nos. 76, 77.)

         Durdley appealed and the Eleventh Circuit affirmed his convictions on September 12, 2011. (ECF No. 119.)

         Nothing further was filed until the clerk received a letter from Durdley in July of 2016 requesting a copy of his Presentence Investigation Report. (ECF No. 121.) The clerk responded, advising Durdley that this was a confidential document and he should contact his attorney. (ECF No.122.) Durdley retained an attorney who made the same request in February of 2017. (ECF No. 123.)

         Durdley's § 2255 motion, dated December 30, 2017, was received by the clerk on January 30, 2018. (ECF No. 125.) He claims that the motion is timely because:

I saw and reviewed my Presentence Report for the first time in February 2017, when my new attorney gat (sic) a copy of it and reviewed it with me. I could not have known of the issues I am currently raising before that time.

(ECF No. 125 at 11.)

         Title 28 U.S.C. § 2255(f) imposes a one-year time limitation on the filing of motions under this section. The one-year period of time runs 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 petitioner 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 ...

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