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Lewis v. United States

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

July 20, 2018

ALPHONSIA JUAWANN LEWIS, AIS #284291, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATIONS

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Alphonsia Juawann Lewis' (“Lewis”) Motion to Vacate, Set Aside, or Correct pursuant to U.S.C. § 2255. (Doc. 35). For the reasons discussed herein, the undersigned RECOMMENDS that Lewis' motion be DISMISSED as time barred.

         BACKGROUND

         On July 21, 2015, Lewis pleaded guilty to being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). (Doc. 20, 33 at 1). On December 3, 2015, Lewis was sentenced to 84 months in the custody of the Bureau of Prisons. (Doc. 33). The final judgment of conviction was entered December 9, 2015. (Doc. 33). Lewis did not file an appeal.

         Lewis is currently in state custody, and will begin serving his federal sentence when his state sentence concludes. (Doc. 35 at 5). Section “2255 is available to a prisoner in state custody attacking a federal sentence scheduled to be served in the future.” Simmons v. United States, 437 F.2d 156, 159 (5th Cir. 1971).[1]

         On November 6, 2017, Lewis filed the subject § 2255 petition, arguing that the United States unlawfully enhanced his sentence and that he is due to be resentenced. (Doc. 35 at 1-2). Because the § 2255 petition appeared to be untimely, and Lewis did not address the issue of timeliness, the undersigned issued a show cause order to provide Lewis with the opportunity to do so. (Doc. 36).[2] In his response, Lewis argues that he is entitled to equitable tolling of the statute of limitations based on his actual innocence. (Doc. 37).

         DISCUSSION

         The Anti-terrorism and Effective Death Penalty Act AEDPA imposes a one-year statute of limitations for filing a § 2255 motion. See 28 U.S.C. § 2255; Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). For § 2255 motions, the statute of limitations runs from the latest of the following trigger dates:

(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).

         Neither the contents of the § 2255 motion nor Lewis' response to the Court's show cause order indicate that the circumstances set forth in § 2255(f)(2)-(4) apply here.[3] Thus, § 2255(f)(1) provides the applicable limitations period, and that Lewis had one year from the date his conviction became final to file his § 2255 petition. See 28 U.S.C. § 2255(f)(1). Judgment was entered on December 9, 2015, and Lewis had 14 days from that date to file a notice of appeal. Fed. R. App. P. 4(b)(1)(A)(i). Because Lewis did not appeal his December 9, 2015 conviction, it became final December 23, 2015, when the 14 day time limit for filing a notice of appeal expired. Murphy v. United States,634 F.3d 1303, 1307 (11th Cir. 2011). Therefore, Lewis had until December 23, 2016, to timely file his petition pursuant to ยง 2255(f)(1). However, Lewis did not file this petition until early ...


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