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. 228. For the reasons below,
Defendant's Motion to Vacate pursuant to § 2255 is
of 2009, Defendant was indicted on two counts: one count of
conspiracy to possess with intent to distributed 5 kilograms
or more of cocaine and 50 grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A); and one count of eluding examination and
inspection by immigration officers by an alien, in violation
of 8 U.S.C. § 1325(a)(2). A superseding indictment was
filed on July 22, 2009, adding additional counts.
entered into an amended written plea agreement on September
1, 2009, agreeing to plead guilty to counts one and two of
the superseding indictment: conspiracy to possess with intent
to distribute and improper entry by an alien. ECF No. 95.
Defendant entered a guilty plea the same day. ECF No. 96.
Defendant was sentenced on February 5, 2010, and Judgment
entered on February 8, 2010, sentencing Defendant to one
hundred and fifty (150) months incarceration, followed by
five years of supervised release. ECF No. 129.
February 18, 2010, Defendant filed a Notice of Appeal with
the Fourth Circuit. ECF No. 133. The Fourth Circuit affirmed
Defendant's conviction and sentence in an opinion filed
January 16, 2011. ECF No. 182. The Mandate and Judgment of
the Court of Appeals was filed on February 16, 2011. ECF No.
filed his motion pursuant to § 2255 on December 6, 2016.
ECF No. 228. The Government filed a motion to dismiss and a
response in opposition to Defendant's § 2255 motion
on March 15, 2017. ECF Nos. 231, 232. 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. 234. Defendant
replied on March 27, 2017. 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 his or her conviction becoming final.
conviction was final when the Judgment was handed down by the
Fourth Circuit on February 16, 2011. Defendant's motion for
relief was not filed until December 6, 2016. Therefore,