United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
SONJA F. BIVINS, Magistrate Judge.
Pending before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 113) and the Government's Motion to Dismiss (Doc. 120). 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 and that Mickels' habeas petition be DISMISSED. The undersigned also recommends that should Mickels file a certificate of appealability, it should be DENIED as he is not entitled to appeal in forma pauperis.
I. PROCEDURAL HISTORY
On July 29, 2010 Terrell Mickels was indicted on charges of conspiracy to possess with intent to distribute crack cocaine (Count One) and possession with intent to distribute crack cocaine (Count Two, Three, and Four). (Doc. 1). On October 26, 2010, Mickels entered a guilty plea, pursuant to a written plea agreement, to possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count Three). (Doc. 41).
Mickels was sentenced to a term of 188 months and Counts One, Two, and Four were dismissed on the Government's Motion (Minute Entry 06/21/2011). Judgment was entered on June 21, 2011. (Doc. 70). Mickels did not file an appeal. However, more than two (2) years later, on September 3, 2013, Mickels filed a "Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense 18 USC 3582." His motion was denied. (Docs. 91, 94). He appealed the denial, and on June 2, 2014, the Eleventh Circuit dismissed the appeal as time-barred. (Doc. 110).
Mickels filed the instant Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 113) on July 22, 2014. In the motion, Mickels argues that he was coerced into pleading guilty because of the ineffective assistance of his counsel. (Doc. 113 at 1). He also argues that he was illegally sentenced above the statutory maximum. According to Mickels, "the Supreme Court held that any fact that increases a defendant's mandatory minimum must be submitted to a jury to be proven beyond a reasonable doubt. (citing Alleyne 11-9335) [sic]." (Doc. 113 at 2). In response to Mickels' motion, the Government filed a Motion to Dismiss and argues that Mickels' petition should be dismissed as time-barred. (Doc. 120). For the following reasons, the undersigned finds that Mickels' petition is untimely and recommends that the Motion to Dismiss be GRANTED.
A § 2255 motion to vacate a federal sentence is subject to a one-year statute of limitations. Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2255 (f), the limitations period begins running from the latest specified dates, 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 ...