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Peterson v. United States

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

April 5, 2018

TIMOTHY E. PETERSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         This 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).

         BACKGROUND

         On 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.

         CONCLUSIONS OF LAW

         The 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).

         Section 2255(f) 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 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).

         In this 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.[1] Because he did ...


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