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Cerpas v. United States

United States District Court, N.D. Georgia, Atlanta Division

July 21, 2014

JULIO CESAR AVALOS CERPAS, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. 1:14-CV-1880-CAP.

ORDER

CHARLES A. PANNELL, Jr., District Judge.

This action is before the court on the magistrate judge's report and recommendation ("R&R") [Doc. No. 2094] and the movant's objections [Doc. No. 2099].

The magistrate judge recommended dismissal of the movant's § 2255 motion as untimely. The movant objected arguing that, because the grounds he raised in the motion are based upon a new rule of constitutional law, Alleyne v. United States, the statute of limitations begins running from the date of the Alleyne decision which was June 17, 2013. However, in order for Alleyne to render the movant's § 2255 motion timely under § 2255(f)(3), it must be retroactive to cases on collateral review. See Dodd v. United States, 545 U.S. 353, 358 (2005). The Supreme Court did not declare that the new rule in Alleyne is retroactive on collateral review, nor is it likely to do so. Jeanty v. Warden, FCI-Miami, No. 13-14931, 2014 WL 3411144, *2 (11th Cir. July 15, 2014). Therefore, § 2255 (f)(3) is inapplicable.

The R&R [Doc. No. 2094] is adopted as the order and opinion of this court.

SO ORDERED.


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