United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY, Magistrate Judge.
Petitioner, Walter Lee Paige, has filed a motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255 (Doc. 24). This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Following consideration of all relevant pleadings in this case, it is recommended that Paige's § 2255 motion be dismissed as time-barred pursuant to 28 U.S.C. § 2255(f)(1).
On July 16, 2007, Paige entered a counseled guilty plea to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), as charged in Count One of the Indictment. ( See Doc. 15.) Petitioner was sentenced to 180 months imprisonment on November 16, 2007, with the Court entering its written judgment on December 5, 2007. (Doc. 20, at 1 & 2.) Paige did not file a direct appeal. (Doc. 24, at 2.)
Paige's § 2255 motion was filed in this Court on or about March 10, 2014. ( See Doc. 24, at 13.) Petitioner asserts that his motion to vacate is timely under 28 U.S.C. § 2255(f)(3) because it is being filed within one year of the date the Supreme Court decided Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). ( See id. at 12.) Paige argues that the Supreme Court announced a new rule of substantive law in Descamps and invites this Court to decide that Descamps is retroactively applicable to cases on collateral review. Compare Figuereo-Sanchez v. United States, 678 F.3d 1203, 1207 (11th Cir. 2012) ("[A] court other than the Supreme Court may determine retroactivity under § 2255(f)(3)[.]"), cert. denied, ___ U.S. ___ , 133 S.Ct. 1455, 185 L.Ed.2d 384 (2013) with Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir. 2004) ("As a panel of this Court noted, every circuit to consider this issue has held that a court other than the Supreme Court can make the retroactivity decision for purposes of § 2255(3)."), aff'd, 545 U.S. 353 , 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). In Descamps, the Supreme Court held that "sentencing courts may not apply the modified categorical approach [to determining whether a prior offense was a violent felony under the Armed Career Criminal Act] when the crime of which the defendant was convicted has a single, indivisible set of elements." Id. at ___, 133 S.Ct. at 2282.
CONCLUSIONS OF LAW
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") was enacted on April 24, 1996 and, pertinent to this case, added a new subdivision to 28 U.S.C. § 2255 providing for a one-year period of limitations within which federal prisoners must file their motions to vacate pursuant to 28 U.S.C. § 2255. Akins v. United States, 204 F.3d 1086, 1089 (11th Cir.), cert. denied, 531 U.S. 971 , 121 S.Ct. 410, 148 L.Ed.2d 316 (2000).
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 the 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).
In the typical case, a petitioner interposes no argument in favor of application of subsections (2), (3), and (4) of § 2255(f), such that the timeliness of a motion to vacate, set aside or correct a sentence becomes relatively easy to calculate under § 2255(f)(1) based upon the date on which a petitioner's judgment of conviction became final. In this case, Paige did not file a direct appeal and, therefore, his conviction became final fourteen (14) days after this Court entered its December 5, 2007 written judgment, on December 19, 2007, that is, the date on which the time for filing a notice of appeal with this Court expired. Compare Fed.R.App.P. 4(b)(1)(A)(i) with Adams v. United States, 173 F.3d 1339, 1342 n.2 (11th Cir. 1999) ("[W]here a defendant does not pursue a direct appeal, the conviction becomes final when the time expires for filing a direct appeal."). Thus, Paige's one-year limitations period for filing his § 2255 motion began running on December 19, 2007 and expired on December 19, 2008. Of course, it is because Paige's motion to vacate comes more than five (5) years following the expiration of his one-year limitations period that he seeks to argue that his motion to vacate is timely under § 2255(f)(3) ("[T]he date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly ...