United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BERT W. MILLING, Jr., Magistrate Judge.
Pending before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. This action was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b) and Rule 8(b) of the Rules Governing Section 2255 Cases. It is now ready for consideration. The record is adequate to dispose of this matter; no evidentiary hearing is required. It is recommended that Petitioner's Motion to Vacate (Doc. 106) be denied, that this action be dismissed, and that judgment be entered in favor of Respondent, the United States of America, and against Petitioner James Edward Lee. It is further recommended that any certificate of appealability filed by Petitioner be denied as he is not entitled to appeal in forma pauperis.
Lee was indicted on December 28, 2011 for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2 and for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Doc. 1). On March 19, 2012, Lee entered into a plea agreement in which he admitted to being a felon in possession of a firearm (Doc. 58). On September 18, 2012, United States District Court Judge Granade sentenced Petitioner to ninety-two months on the conviction as well as three years of supervised release following his release from prison and an assessment of one hundred dollars (Doc. 100). Lee did not appeal his conviction or sentence (Doc. 99).
Petitioner filed his Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 on January 12, 2015 in which he raises the single claim that his sentence was too long based on the statute under which he was sentenced (Doc. 106). Respondent filed a response on March 5 (Doc. 108) to which Petitioner replied (Doc. 112).
Before taking up Lee's claim, the Court notes that Respondent has answered the Petitioner, arguing that this petition should be dismissed as it was not filed within the one-year statute of limitations period (Doc. 108, pp. 3-4). Respondent refers to provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (hereinafter AEDPA ) which amended, in pertinent part, 28 U.S.C. § 2255. The specific provisions state as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
* * *
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). The AEDPA became effective on April 24, 1996. Goodman v. United States, 151 F.3d 1335, 1336 (11th Cir. 1998).
Since he did not file an appeal, Lee's conviction became final on October 2, 2012, fourteen days after the entry of judgment. F.R.App.P. 4(b)(1)(A)(i) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after  the entry of either the judgment or the order being appealed"). The next day, the AEDPA clock began, running through October 2, ...