REPORT AND RECOMMENDATION
28 U.S.C. § 2255.
STEPHEN HYLES, Magistrate Judge.
Presently pending before the Court is Respondent's motion to dismiss (ECF No. 66) Petitioner's 28 U.S.C. § 2255 (ECF No. 64) claim as untimely. For the reasons stated below, it is recommended that Respondent's motion be granted and Petitioner's claim be dismissed.
BACKGROUND
On August 10, 2012, Petitioner was arrested by the Columbus Police Department for possession of cocaine. Pre-Sentence Investigation Report ("PSR") ¶ 7, ECF No. 52. As a result, Petitioner's parole—related to a previous state conviction—was revoked and Petitioner was transported to Georgia Detention Center, on October 11, 2012, by state authorities. Id. On June 11, 2013, Petitioner was indicted by a federal grand jury. Indictment 4, ECF No. 1. Subsequently, on July 16, 2013, the U.S. Marshals Service took Petitioner into custody. PSR ¶ 7. Then, on September 23, 2013, Petitioner's previous state sentence was commuted to time served. Id. at ¶ 46. On February 3, 2014, Petitioner pled guilty, in federal court, to possession of cocaine with intent to distribute. Indictment 1; Change of Plea, ECF No. 39. On April 30, 2014, Petitioner was sentenced to 125 months imprisonment and 5 years of supervised release. J. 2-3, ECF No. 56. On September 5, 2017, Petitioner moved for relief under § 2255, arguing he has not been given credit on his sentence for time served in state custody. Mot. to Vacate 14, ECF No. 64. Respondent argues Petitioner's motion is untimely and should be dismissed. Mot. to Dismiss 2-5, ECF No. 66.
DISCUSSION
I. Limitations period
On April 24, 1998, Congress enacted the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in an effort "to eliminate the interminable delays in the execution of state and federal criminal sentences . . . produced by various aspects of this Court's habeas corpus jurisdiction." Hohn v. United States, 524 U.S. 236, 264-65 (1998). It established the following time bar:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run 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 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).
A judgment becomes final when a defendant's time for appealing expires. Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011) ("[W]hen a defendant does not appeal his conviction or sentence, the judgment of conviction becomes final when the time for seeking that review expires.") Petitioner's judgment was entered on April 30, 2014. J. 1, ECF No. 56. Thus, Petitioner's appeal became final on May 14, 2014, when his time for filing an appeal expired. Fed. R. App. R. 4(b)(1)(A). Petitioner's one-year limitations period thus began to run on May 15, 2014, and expired on May 18, 2015.1 Petitioner's current motion was not filed until August 25, well after the one-year limitations period's expiration.2 Mot. to Vacate 13, ECF No. 64.
Petitioner argues his one-year limitations period should begin on June 10, 2017, when he discovered the alleged mistake in his sentencing, in accordance with § 2255(f)(4). Mot. to Vacate 14. In order to succeed, Petitioner's claim must not be based on known facts or those he could have known. Cole v. Warden, Georgia State Prison, 768 F.3d. 1150, 1156 (11th Cir. 2014) ("Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance" (internal quotation marks and citation omitted)).
The important fact here was the date Petitioner's state sentence ended. "A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences [] as a result of the offense for which the sentence was imposed . . . that has not been credited against another sentence." 18 U.S.C. § 3585(b). Petitioner was under a state sentence until September 23, 2013—at which point it was commuted to time served. PSR ¶46. This fact was clearly noted in the Draft PSR, to which Petitioner could review and make objections. Draft PSR ¶ 46, ECF No. 48. Petitioner only objected to the ownership of two weapons found where Petitioner was arrested. Obj. to PSR 1, ECF No. 50. Petitioner did not comment on the commutation of his state sentence. Id. Because Petitioner was, or should have been, aware of the date of his state sentence's commutation after reading the Draft PSIR, he cannot show due diligence as required under § 2255(f)(4). Petitioner's claim, therefore, should be dismissed as untimely.
III. Certificate of Appealability
Rule 11(a) of Rules Governing Section 2255 Cases in the United States District Courts provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability may issue only if the applicant makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a court denies a habeas petition on procedural grounds without reaching the merits of the petitioner's application for habeas relief, this standard requires a petitioner to demonstrate that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." See Slack v. McDaniel, 529 U.S. 473, 478 (2000). Petitioner cannot meet this standard. Therefore, a certificate of appealability in this case should not be issued in this case.
CONCLUSION
For the reasons previously stated, it is recommended that Respondent's motion (ECF No. 66) be granted and Petitioner's § 2255 claim (ECF No. 64) dismissed. Additionally, a certificate of appealability should be denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file any objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waive the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED.
