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Jones v. United States

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

September 24, 2019

ANTONIO JONES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JOHN ANTOON II UNITED STATES DISTRICT JUDGE.

         Antonio Jones ("Petitioner") filed a Motion to Vacate, Set Aside, or Correct Sentence ("Motion to Vacate, " Doc. 1) pursuant to 28 U.S.C. § 2255, along with a Memorandum of Law (Doc. 2) in support of the Motion to Vacate. The Government filed a Response in Opposition to the Motion to Vacate ("Response, " Doc. 8) 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. 10) and an Amended Reply (Doc. 13) to the Response. For the reasons set forth herein, the Motion to Vacate will be denied as untimely.

         I. Procedural Background

         A Grand Jury charged Petitioner and another individual in an eight-count Indictment with the commission of various crimes. (Criminal Case No. 6:10-cr-137-Orl- 28GJK, Doc. I).[1] Petitioner was charged in all eight counts. Petitioner subsequently entered into a Plea Agreement (Criminal Case Doc. 75) in which he agreed to enter a guilty plea to Counts One, Three, and Five of the Indictment. Petitioner entered his plea before Magistrate Judge Gregory J. Kelly, who filed a Report and Recommendation Concerning Plea of Guilty (Criminal Case Doc. 79) recommending that the Plea Agreement and the guilty plea be accepted and that Petitioner be adjudged guilty and have sentence imposed accordingly.

         The Court entered an Acceptance of Plea of Guilty and Adjudication of Guilt (Criminal Case Doc. 82) in which the guilty plea was accepted and Petitioner was adjudicated guilty of the offenses. The Court next entered a Judgment in a Criminal Case (Criminal Case Doc. 97) in which Petitioner was sentenced to imprisonment for a total term of 302 months. On April 9, 2013, the Eleventh Circuit Court of Appeals affirmed the convictions and sentence. (Criminal Case Doc. 144). The mandate issued on May 16, 2013. (Id.).

         On June 20, 2016, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence under the mailbox rule[2] (Doc. 159), which the Court dismissed without prejudice on August 9, 2016. (Case Number 6:16-cv-1157-Orl-28GJK).[3] The present Motion to Vacate was filed on May 1, 2018, under the mailbox rule.

         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(f). The Motion to Vacate is subject to dismissal because it was not timely filed under the one-year period of limitation set forth in section 2255.

         III. ...


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