United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, Jr., Magistrate Judge.
On November 8, 2013, petitioner Nukak Effoing Asanansi ("Asanansi") filed this pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Asanansi asserts claims challenging the sentence imposed by this court in July 2010 following his conviction on charges of conspiracy to commit bank fraud, wire fraud, and mail fraud and aiding and abetting bank fraud. He argues he is entitled to a reduction in his 85-month sentence because a Federal Bureau of Prisons ("BOP") policy renders him ineligible, as a deportable alien, for transfer to a halfway house or minimum-security camp during the latter part of his sentence. The government maintains Asanansi's § 2255 motion is time-barred because it was filed after expiration of the one-year limitation period in 28 U.S.C. § 2255(f). Doc. No. 11. For the reasons indicted below, 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.
The timeliness of Asanansi's § 2255 motion is governed by 28 U.S.C. § 2255(f), which states:
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 February 18, 2010, a jury found Asanansi guilty of various counts of conspiracy to commit bank fraud, wire fraud, and mail fraud and aiding and abetting bank fraud. 18 U.S.C. §§ 1349, 1344 & 2. On July 19, 2010, the district court sentenced him to a total of 85 months in prison to be followed by five years of supervised release. Judgment was entered by the district court on July 22, 2010. Asanansi took no direct appeal.
Because Asanansi did not appeal, his conviction became final on August 5, 2010, i.e., fourteen days after the district court's July 22, 2010, entry of judgment. See Fed.R.App.P. 4(b)(1)(A)(i); Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011) ("When a defendant does not appeal his sentence, the judgment of conviction becomes final when the time for seeking that review expires."). Under 28 U.S.C. § 2255(f)(1), then, he had until August 5, 2011, to file a timely § 2255 motion. Filing his § 2255 motion on November 8, 2013, renders it untimely under § 2255(f)(1).
Seeking to extend the limitation period for filing his § 2255 motion, Asanansi argues his motion is timely under 28 U.S.C. § 2255(f)(4) because, he says, he did not discover the BOP policy preventing placement of deportable aliens in halfway houses or minimum-security camps until September 2013, less than one year before he filed his § 2255 motion. Doc. No. 2 at 2. He maintains the facts supporting his claim for relief - i.e., the existence and effect of ...