United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER, Chief Magistrate Judge.
On November 13, 2012, petitioner Robert Sharond Daniels ("Daniels") filed this pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. No. 1.) Daniels challenges his 2011 convictions and resulting 37-month sentence for aiding and abetting the possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) & 18 U.S.C. § 2, and possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1). He claims that his trial counsel rendered ineffective assistance by failing to explain the consequences of pleading guilty and by allowing him to plead guilty to the § 924(c)(1) offense when he was actually innocent of that crime. (Doc. No. 1 at 2-3.)
The government maintains that Daniels's claim of actual innocence is meritless and that his § 2255 motion is time-barred, as it was filed after expiration of the one-year limitation period in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2255(f). (Doc. No. 5.) 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 the AEDPA.
The timeliness of Daniels'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).
Application of § 2255(f)(1)
On April 4, 2011, Daniels pled guilty to aiding and abetting the possession with intent to distribute marijuana and possession of a firearm in furtherance of a drug trafficking crime. On September 30, 2011, the district court sentenced him to a total of 37 months in prison. Judgment was entered by the district court on October 4, 2011. Daniels took no direct appeal. His conviction therefore became final 14 days later, on October 18, 2011. See Fed.R.App.P. 4(b)(1)(A)(i) (criminal defendant has 14 days to file an appeal from the district court's judgment of conviction); Murphy v. United States, 634 F.3d 1303, ...