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Nelson v. United States

United States District Court, S.D. Alabama, Southern Division

December 12, 2017




         This matter is before the Court on pro se Petitioner Richard Nelson's Motion to Vacate, Set Aside, or Correct pursuant to U.S.C. § 2255 and Petitioner's Response to the Court's Order to Show Cause. (Docs. 130 and 132). The motion has been referred to the undersigned Magistrate Judge who, under S.D. Ala. GenLR 72(a)(2)(R), is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of these proceedings brought under 28 U.S.C. § 2255, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2255 Proceedings for the United States District Courts. See S.D. Ala. GenLR 72(b); (case docket, 08/29/2017 electronic reference).

         After conducting preliminary review in accordance with Rule 4(b) of the Rules Governing Section 2255 Proceedings, the undersigned entered an Order directing Petitioner to respond as to why his § 2255 petition should not be dismissed as untimely. (Doc. 131). Petitioner filed a timely response. (Doc. 132).

         Having reviewed the record and Petitioner's response (Doc. 132), the undersigned finds that an evidentiary hearing is not warranted, and RECOMMENDS that his motion pursuant to § 2255 (Doc. 130) be DISMISSED as time barred. The undersigned further finds that Petitioner is not entitled to a certificate of appealability or to proceed in forma pauperis on appeal.


         Following a jury trial held July 14-15, 2008, Petitioner was found guilty of enticement of a minor to engage in sexual activity and commission of a felony offense involving a minor by a registered sex offender, in violation of 18 U.S.C. §§ 2422(b) and 2260A. On October 24, 2008, Petitioner was sentenced to 525 months in the custody of the Bureau of Prisons. (Doc. 84). The same day, Petitioner filed a Notice of Appeal (Doc. 79) and on July 13, 2009, the Court of Appeals for the Eleventh Circuit affirmed his convictions. (Doc. 107). On October 15, 2009, the United States Supreme Court denied certiorari. (Doc. 108).

         On July 1, 2013, Petitioner filed a “motion for leave to file out of time, ” which the district court denied via an endorsed order. (Docs. 114-115). Petitioner appealed the order denying his motion and on March 5, 2014 the Court of Appeals concluded that Petitioner's appeal was frivolous, explaining:

In 201[3], Nelson filed the motion at issue in this appeal. In this self-styled “motion for leave to file out of time, ” Nelson asked the district court for leave to file out of time, on the grounds that he had only recently learned how to use computers to conduct legal research and had limited computer time. He did not state what sort of motion or other filing he sought to untimely file, but, based on the nature of the issues that he indicated he wished to raise ineffective assistance of counsel, pretrial publicity, and conflict of interest-he apparently intended to file an untimely 28 U.S.C. § 2255 motion to vacate. He also asked the court to issue subpoenas for the press coverage of his criminal trial from two local news sources. In an endorsed order, the court denied his self-styled motion. The district court also denied his motion to proceed IFP on appeal.
As an initial matter, Nelson has not filed a motion to vacate, pursuant to § 2255, and does not need a certificate of appealability to proceed on appeal. See 28 U.S.C. § 2253(c). Thus, the only issue before us is whether his appeal would be frivolous. See id. § 1915(e)(2)(8)(1). An action is frivolous if it is without arguable merit either in law or fact. Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).
Although Nelson admits that any post-conviction motion he might file would be untimely, the district court properly denied his request to untimely file a motion challenging his convictions because he does not need the district court's permission to file a motion to vacate, untimely or otherwise.

(Doc. 125 at 2). In August 2017, nearly seven years after his conviction became final, Petitioner filed his first motion pursuant to § 2255.


         Under the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), a motion to vacate is subject to the one-year statute of limitations provided by 28 U.S.C. § 2255(f). The one-year period runs from the latest of the dates on which (1) Petitioner's conviction became final; (2) a Government impediment to making the motion to vacate was removed; (3) a right that Petitioner asserts was initially recognized by the United States Supreme Court, if the right has been newly recognized and made retroactively applicable to cases on collateral review; or (4) Petitioner, with due diligence, could have discovered the facts supporting his claims. See 28 U.S.C. § 2255(f)(1)-(4).

         Petitioner's conviction became final on October 15, 2009, when the United States Supreme Court denied certiorari. Thus, Petitioner's statute of limitations pursuant to § 2255(f) expired October 15, 2010. Petitioner's § 2255 motion was filed in August 2017, nearly seven years beyond the expiration of the § 2255(f)(1) limitation period. On October 2, 2017, the undersigned entered a show cause order, indicating that the § 2255 ...

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