United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant’s motion for
relief, filed in this court pursuant to 28 U.S.C. §
2255. ECF No. 323. For the reasons below, Defendant’s
Motion to Vacate pursuant to § 2255 is dismissed.
December of 2009, Defendant was indicted on one count of
conspiracy to violate the Animal Welfare Act and to Engage in
an Illegal Gambling Business, in violation of 18 U.S.C.
§ 371; two counts of participating in, and/or aiding and
abetting, an Unlawful Animal Fighting Venture in violation of
7 U.S.C. § 2156 and 18 U.S.C. § 2; and two counts
of participating in, and/or aiding and abetting, an Illegal
Gambling Business in violation of 18 U.S.C. § 1955 and
18 U.S.C. § 2.
of 2010, a jury trial was held and Defendant was found guilty
as to all counts. ECF No. 146. Defendant was sentenced on
August 3, 2010, and Judgment entered on August 4, 2010,
sentencing Defendant to twenty-one (21) months incarceration,
followed by three years of supervised release. ECF No. 202.
August 10, 2010, Defendant filed a Notice of Appeal with the
Fourth Circuit. ECF No. 210. The Fourth Circuit vacated and
remanded the counts alleging violations of the animal
fighting 3:09-cr-01295-CMC Date Filed 06/16/16 Entry Number
337 Page 2 of 5 statute, due to juror misconduct, and
subsequently the Government moved to dismiss these counts.
ECF Nos. 287, 291. On June 18, 2012, this court granted the
motion to dismiss counts two and three. ECF No. 292. On
November 9, 2012, Defendant was re-sentenced and received
twenty-one months in prison and three-years supervised
release on counts one, four, and five. ECF No. 304. Defendant
appealed this judgment, and the Fourth Circuit affirmed. ECF
No. 317. The Mandate and Judgment of the Court of Appeals was
filed on January 27, 2014.
filed his motion pursuant to § 2255 on March 23, 2016.
ECF No. 323. On March 28, 2016, this court entered an Order
dismissing Defendant’s § 2255 motion as untimely.
ECF No. 324. However, on April 6, 2016, this court entered an
Order vacating the previous Order in light of U.S. v.
McRae, which held that the AEDPA statute of limitations
is an affirmative defense. See ECF No. 327 (citing
McRae, 793 F.3d 392 (4th Cir. 2015)). The Government
filed a motion to dismiss Defendant’s § 2255
motion as untimely on May 13, 2016. ECF No. 333. A
Roseboro order was entered by the court and mailed
to Defendant, advising him of the importance of a dispositive
motion and the need to file an adequate response. ECF No.
334. Defendant replied on June 13, 2016, arguing the merits
of his motion. ECF No. 336.
28, United States Code § 2255(f) imposes a one-year
statute of limitation on motions for relief under 28 U.S.C.
§ 2255. Pursuant to the AEDPA, the limitation period
runs 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). Therefore, unless subject to a
statutory exception, a defendant must file an application for
relief under § 2255 within one year of ...