United States District Court, S.D. Alabama, Southern Division
TIMOTHY E. PETERSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
cause is before the Court on Petitioner Timothy E.
Peterson's Motion Pursuant to 28 U.S.C.S. § 1651
“All Writs Act” (Doc. 32), which the Court has
recharacterized as a § 2255 motion to vacate, set aside
or correct sentence by a person in federal custody (Doc. 33),
the United States's Motion to Dismiss (Doc. 43), and
Petitioner's replies (Docs. 46 and 47). This action has
been referred to the undersigned for entry of a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
S.D. Ala. Gen LR 72(a)(2)(R). After consideration of all
relevant filings, it is recommended that the motion to
dismiss filed by the United States be
GRANTED and that Peterson's § 2255
motion be DISMISSED as time-barred pursuant
to 28 U.S.C. § 2255(f).
October 19, 2010, Peterson pled guilty to Count II of an
indictment charging the offense of receipt and distribution
of child pornography in violation of Title 18, United States
Code Section 2252A(a) and (b)(1). (Doc. 13). On February 14,
2011, Peterson was sentenced to a term of 210 months in
prison. (Doc. 23). On November 6, 2017, Peterson filed the
subject motion pursuant to 28 U.S.C. § 1651 requesting
that all charges against him be dismissed and seeking his
immediate release from prison. (Doc. 32 at pp. 4, 9).
Although Peterson's motion specifically states that he
seeks relief pursuant to 28 U.S.C. § 1651 and “NOT
A 2255 motion, ” (Doc. 32 at p. 1), the Court
recharacterized his motion as a § 2255 motion and gave
Peterson notice and an opportunity to withdraw or amend the
motion. (Doc. 33). Peterson did neither, but still argues
that his motion is one under § 1651 in his response to
the motion to dismiss his petition. (Doc. 47). On March 6,
2018, this Court gave Petitioner the opportunity to explain
why his petition is not time-barred. (Doc. 45). Peterson
filed his response to that order on March 19, 2018. (Doc.
46). This matter is now ripe for determination.
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) was enacted on April 24, 1996 and,
pertinent to this case, added a new subdivision to 28 U.S.C.
§ 2255 providing for a one-year period of limitations
within which federal prisoners must file their motions to
vacate pursuant to 28 U.S.C. § 2255. Akins v. United
States, 204 F.3d 1086, 1089 (11th Cir.), cert.
denied, 531 U.S. 971 (2000).
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(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
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if the 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).
case, Peterson did not file a direct appeal (see
Docket Sheet) and, therefore, his conviction and sentence
became final fourteen (14) days after this Court entered the
judgment on February 17, 2011, that is, on March 3, 2011, the
date on which the time for filing a notice of appeal expired.
Akins, 204 F.3d at 1089, n.1 (noting that when a
defendant does not pursue a direct appeal, the conviction
becomes final when the time expires for filing a direct
appeal). Thus, Peterson's one-year limitations period for
filing his § 2255 motion began running on March 3, 2011
and expired on March 3, 2012. Because he did ...