Filed: Oct. 29, 2014
Latest Update: Oct. 29, 2014
Summary: REPORT AND RECOMMENDATION G. R. SMITH, Magistrate Judge. Robert Lee Green has filed a 28 U.S.C. 2255 motion to vacate, set aside, or correct his federal prison sentence. (Doc. 1. 1 ) Upon preliminary review under Rule 4(b) of the Rules Governing 2255 Proceedings in the United States District Courts, this case should be dismissed because the motion is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which requires a movant to file a 2255 motion within o
Summary: REPORT AND RECOMMENDATION G. R. SMITH, Magistrate Judge. Robert Lee Green has filed a 28 U.S.C. 2255 motion to vacate, set aside, or correct his federal prison sentence. (Doc. 1. 1 ) Upon preliminary review under Rule 4(b) of the Rules Governing 2255 Proceedings in the United States District Courts, this case should be dismissed because the motion is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which requires a movant to file a 2255 motion within on..
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REPORT AND RECOMMENDATION
G. R. SMITH, Magistrate Judge.
Robert Lee Green has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal prison sentence. (Doc. 1.1) Upon preliminary review under Rule 4(b) of the Rules Governing § 2255 Proceedings in the United States District Courts, this case should be dismissed because the motion is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which requires a movant to file a § 2255 motion within one year of the date his judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1).
On December 17, 2004, the Court sentenced Green to 180 months' imprisonment after he pled guilty to possessing a firearm as a convicted felon. (Cr. doc. 37.) The Eleventh Circuit dismissed his appeal on December 7, 2005. (Cr. Doc. 49.) His conviction became "final" when the time for filing a certiorari petition expired. Clay v. United States, 537 U.S. 522, 524-25 (2003) ("For the purposes of starting the clock on § 2255's one-year limitation period, we hold, a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction."); see Jimenez v. Quarterman, 555 U.S. 113 (2009) (applying same principle in the 28 U.S.C. § 2254 context). Green was entitled to petition for certiorari within 90 days of the entry of the judgment against him by the Eleventh Circuit, Sup. Ct. R. 13.1, but he never filed such a petition. His conviction thus became "final" on March 7, 2006, 90 days after the Eleventh Circuit's mandate. He had one year from that date to file his § 2255 motion. He did not do so until August 5, 2014, more than eight years too late.2
Green's § 2255 motion should be DENIED as untimely. Applying the Certificate of Appealability ("COA") standards, the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1). And, since there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED.
