United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, Jr., Magistrate Judge.
On August 15, 2012, federal inmate Christine Albin ("Albin") filed this pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 1. Albin challenges her 2007 guilty-plea convictions and sentence for conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of a firearm in relation to a drug-trafficking crime, in violation 18 U.S.C. § 924(c). The government maintains Albin's § 2255 motion is time-barred because it was filed after expiration of the one-year limitation period. Doc. No. 3. The court concludes the government is correct and that the § 2255 motion should be denied because it was not filed within the time allowed by federal law.
A. One-year Limitation Period
The timeliness of Albin's § 2255 motion is governed by 28 U.S.C. § 2255(f). That section provides:
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 exercise of due diligence.
28 U.S.C. § 2255(f).
On September 25, 2007, Albin pled guilty under a plea agreement to conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of a firearm in relation to a drug-trafficking crime, in violation 18 U.S.C. § 924(c). On December 4, 2007, she was sentenced to 138 months in prison (78 months for the conspiracy count followed by a consecutive term of 60 months for the § 924(c) count). Judgment was entered by the district court on December 13, 2007. Albin took no appeal. Therefore, her conviction was "final" on December 23, 2007. Under 28 U.S.C. § 2255(f)(1), Albin had until December 23, 2008, to file a timely § 2255 motion. Her § 2255 motion filed on August 15, 2012, is untimely under § 2255(f)(1).
Albin maintains her § 2255 motion is timely - presumably under 28 U.S.C. § 2255(f)(3) - because it was filed within one year after the Fourth Circuit Court of Appeals' decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). See Doc. No. 1 at 10. In Simmons, the Fourth Circuit applied Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), to find that a federal defendant's prior North Carolina conviction for non-aggravated, first-time marijuana possession was for an offense not "punishable by imprisonment for a term exceeding one year, " and thus did not qualify as a predicate felony conviction for purposes of the Controlled Substances Act. Simmons, 649 F.3d at 248-49. Carachuri, which was decided by the Supreme Court in June 2010, dealt with under what circumstances a prior conviction for simple possession of a controlled substance can constitute an "aggravated felony" under 8 U.S.C. § 1229b(a)(3). The Supreme Court held that the statutory enhancements for recidivism regarding simple possession under 18 U.S.C. § 844 do not render a prior conviction a conviction for an aggravated felony, where recidivism is ...