United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER, Chief Magistrate Judge.
On November 13, 2012, federal inmate Rickey Randall Rex Smith ("Smith") filed this pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. No. 1.) By his motion, Smith challenges his convictions and the resulting life sentence imposed by this court in March 2010 on charges of production, transportation, and possession of child pornography, in violation of 18 U.S.C. §§ 2251(a), 2252A(a)(1) & 2252A(a)(5)(B).
Smith claims that his trial counsel rendered ineffective assistance of counsel by advising him to reject a plea offer allegedly extended to him before he entered his guilty plea. (Doc. No. 1 at 6-10.) He also claims, in an amendment to his § 2255 motion, that (1) the district court's calculation of his base offense level using the 2009 Sentencing Guidelines resulted in an Ex Post Facto Clause violation under the holding of Peugh v. United States, ___ U.S. ___, 133 S.Ct. 2072 (2013), and (2) the Government engaged in prosecutorial misconduct in obtaining his indictment. (Doc. No. 14.)
The Government argues that Smith'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. Nos. 7 & 21.). The court concludes that 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 Smith'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 January 12, 2010, Smith pled guilty under a three-count indictment charging him with to the production, transportation, and possession of child pornography. On March 29, 2010, the district court sentenced him to life imprisonment under 18 U.S.C. § 3559(e) as a repeat sex offender ...