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Tucker v. United States

United States District Court, N.D. Alabama, Jasper Division

April 3, 2019

JOEL TODD TUCKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF OPINION

          L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This is a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, filed by Petitioner Joel Todd Tucker (“Tucker”) on March 11, 2019. (Doc. 1.) Pursuant to § 2255(b) and Rule 4 of the Rules Governing Section 2255 Proceedings, this Court has conducted a preliminary review of the motion and determines that it is due to be denied and this action dismissed.

         II. Background

         On May 26, 2017, Tucker pled guilty, pursuant to a written plea agreement, to conspiracy to distribute and possess with the intent to distribute five grams or more of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1) and possession of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4). On November 2, 2017, this Court sentenced Tucker to a term of imprisonment of 150 months as to Count 1 to run consecutive to 60 months as to Count 4 for a total imprisonment term of 210 months, to be followed by a term of supervised release for a term of 120 months as to Count 1 to run concurrent with 60 months as to Count 4. Judgment was entered on November 3, 2017. Tucker did not appeal. Tucker remains in custody.

         III. Discussion

         Tucker's sole argument is that his conviction on Count 4 for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) should be vacated due to the United States Supreme Court's recent decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018).

         Tucker's motion to vacate is subject to a one-year statute of limitations, running 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 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).

         This Court entered Tucker's judgment on November 3, 2017, and Tucker did not appeal. A federal criminal judgment that is not appealed becomes final for the purpose of § 2255 when the time for filing a direct appeal expires. See, e.g., Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011). Therefore, Tucker's convictions became final on November 17, 2017, fourteen days after this Court entered judgment. See Fed. R. App. P. 4(b)(1)(A). Tucker did not file the instant motion until March 11, ...


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