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Chin v. United States

United States District Court, M.D. Florida, Fort Myers Division

August 16, 2019

ANDREW CHIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER[1]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner Andrew Chin's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Cv. Doc. 1, [2] “Motion”) filed on January 8, 2019. For the reasons set forth below, the Court dismisses the Motion as time-barred.

         I. BACKGROUND

         On December 3, 2014, Chin was charged in a multiple count Indictment. Cr. Doc. 1. On February 9, 2016, Chin pled guilty pursuant to a written plea agreement to Count One of the Indictment: Conspiracy to Possess with Intent to Distribute five (5) or more kilograms of cocaine, 28 or more grams of cocaine base, and a quantity of marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii)(II), 841(b)(1)(B)(iii)(II). 841(b)(1)(C), and 846. See Cr. Doc. 126, 138. On March 24, 2017, the Court sentenced Chin to 210 months in prison, followed by five years of supervised release. Cr. Doc. 268, 269. Chin did not appeal his conviction or sentence.

         On December 6, 2017, the Government filed a motion for reduction in sentence pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure[3] in which it requested a two-level departure placing Chin's sentence in the guideline range of 210-262 months.[4]Cr. Doc. 270. Counsel for Petitioner filed a response to the Rule 35(b) motion requesting the Court to grant a two-level variance placing Chin in the range of 168-210 months and urging the Court to impose the low-end of the new guideline range of 168 months. Cr. Doc. 271. On December 29, 2017, the Court granted the Government's Rule 35(b) motion and ordered Chin's sentence to be reduced to 168 month's imprisonment “leaving all other components of the sentence as imposed” in the original judgment. Cr. Doc. 272. On January 8, 2018, the amended judgment reflecting the reduced 168-month term of imprisonment was entered. Cr. Doc. 273. As noted in the Statement of Reasons, the amended sentence was entered as a result of the Court granting the Government's Rule 35 motion. Cr. Doc. 274 at 4.

         On January 8, 2019, Chin, represented by counsel, filed the instant 2255 Motion presenting one claim: previous defense counsel, Jose Calvo, provided ineffective assistance by failing to advise Chin that the Government had filed a Rule 35 motion depriving Chin of the opportunity to request a hearing or otherwise “appraise the Court of the details of the assistance he provided” and request a further sentence reduction. Cv. Doc. 1 at 4. The Government filed a response to Chin's § 2255 Motion in which it submitted that the Motion was timely but was “facially insufficient to warrant relief” because Chin does not have a Sixth Amendment right to counsel in proceedings on a Rule 35 motion. Cv. Doc. 8 at 2-3. Chin filed a reply. Cv. Doc. 9.

         This matter is ripe for the Court's review based upon the record before the Court. Further, the Court finds an evidentiary hearing is not warranted because the “files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).

         II. DISCUSSION

         Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”) in 1996, which established a one-year limitation period for filing a motion under 28 U.S.C. § 2255. In pertinent part, AEDPA amended § 2255 to provide:

         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 ...

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