United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
SONJA F. BIVINS, Magistrate Judge.
Pending before the Court is Petitioner Danny Sellers' Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 600) and various motions to amend and supplement the petition. (Docs. 601, 609, 613 and 626). The Government has filed a Motion to Dismiss the Motion to Vacate, Set Aside, or Correct Sentence (Doc. 610). This action has been referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b) of the Rules Governing Section 2255 Cases and is now ready for consideration. The undersigned has conducted a careful review of the record and finds that no evidentiary hearing is required to resolve this case. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317 (11th Cir. 2004). Following a complete review of this action, the undersigned recommends that the Government's Motion to Dismiss be GRANTED, that Sellers' habeas petition be DISMISSED, and that Sellers' remaining motions be DENIED. The undersigned further recommends that in the event Sellers files a certificate of appealability, and seeks to appeal in forma pauperis, said requests should be DENIED.
I. PROCEDERAL HISTORY
On June 14, 2007, a jury convicted Sellers of conspiracy to possess with intent to distribute crack cocaine and possession with intent to distribute crack cocaine in violation of Title 21, United States Code Sections 846 and 841(a)(1). (Doc. 174). Sellers was sentenced to 262 months on the conspiracy count, and 240 months on the possession count, with the terms to run concurrently. (Doc. 314). Judgment was entered on October 22, 2007. (Id.). Sellers appealed, and on July 25, 2008, the Eleventh Circuit issued a mandate affirming Sellers' conviction. (Doc. 431).
Prior to the issuance of the Eleventh Circuit's mandate, Sellers, on May 27, 2008, filed a motion seeking retroactive application of the sentencing guidelines. (Doc. 420). Based on Amendment 706 of the United States Sentencing Guidelines (as amended by 711), Sellers' request for a reduction was granted, and on November 20, 2008, the Court entered judgment reducing Sellers' sentence to 240 months on the conspiracy count, and 240 months on the possession count, with said terms to run concurrently (Doc. 450). Sellers appealed the new sentence, and on October 22, 2009, the Eleventh Circuit issued a mandate affirming Sellers' new sentence. (Doc. 484).
On November 4, 2011, Sellers filed another motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). (Doc. 562). Upon consideration, the Court, on February 1, 2012, reduced Sellers' sentence to 189 months on both counts pursuant to Amendment 750 to the United States Sentencing Guidelines. (Doc. 594). On February 3, 2012, Sellers filed a "Petition for Legal Redress." (Doc. 596). In denying the motion, the Court held that to the extent Sellers was endeavoring to proceed under 28 U.S.C. § 2255, the petition was untimely because his conviction became final in October 2009, when the Eleventh Circuit issued its mandate affirming Sellers' conviction and sentence. (Doc. 597). The Court also held that Sellers' assertion that the Court lacked subject matter jurisdiction was frivolous, and accordingly, denied his petition. (Id.).
On March 2, 2012,  Sellers filed the current Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 challenging the Court's jurisdiction to render judgment against him and the indictment process by which he was indicted. (Doc. 600 at 4-6, 8). In response, the Government seeks dismissal of Sellers' habeas petition as both untimely and successive. (Doc. 610). In his response, Sellers filed a "Motion to Amend" in which he argues that the Government's attorney misunderstood the "substantive and adjective law." (Doc. 613 at 4). For the following reasons, the undersigned finds that Sellers' petition is untimely and recommends that the Motion to Dismiss be GRANTED.
Section 28 U.S.C. § 2255(f), which amended the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides as follows:
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 ...