United States District Court, S.D. Alabama, Northern Division
REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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). In his response,
Lewis argues that he is entitled to equitable tolling of the
statute of limitations based on his actual innocence. (Doc.
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
(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 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).
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. 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 § 2255(f)(1).
However, Lewis did not file this petition until early