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Barger v. United States

United States District Court, M.D. Alabama, Eastern Division

February 18, 2015

CASEY DEAN BARGER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

RECOMMENDATION OF THE MAGISTRATE JUDGE

SUSAN RUSS WALKER, Chief Magistrate Judge.

This matter is before the court on a pro se motion by federal inmate Casey Dean Barger ("Barger") to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.

I. BACKGROUND

On July 13, 2009, Barger pled guilty under a plea agreement to receiving or distributing child pornography in interstate commerce, a violation of 18 U.S.C. § 2252A(a)(2). On November 19, 2009, the district court sentenced him to 210 months' imprisonment. The court entered its judgment on November 30, 2009. Barger took no appeal.

On June 21, 2013, Barger filed the instant § 2255 motion (Doc. No. 1) challenging his conviction and sentence and claiming that he is actually innocent of the crime to which he pled guilty. The government argues that Barger's actual-innocence claim is without merit and that his motion should be dismissed as untimely under the one-year limitation period in 28 U.S.C. § 2255(f). See Doc. No. 3 at 5-8. For the reasons that follow, the court agrees with the government.[1]

II. DISCUSSION

Limitation Period in 28 U.S.C. § 2255(f)

The timeliness of Barger's motion is governed by 28 U.S.C. § 2255(f), which 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 ...

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