United States District Court, N.D. Alabama, Jasper Division
MEMORANDUM OF OPINION
SCOTT COOGLER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
(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).
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, ...