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Hine v. United States

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

June 1, 2015

GEOFFREY WILLIAM HINE, Movant pro se,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. 4:15-CV-25-HLM-WEJ

ORDER AND FINAL REPORT AND RECOMMENDATION

WALTER E. JOHNSON, Magistrate Judge.

This matter has been submitted to the undersigned Magistrate Judge for consideration of movant pro se Geoffrey William Hine's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 [65] ("Motion to Vacate"), Motions for Leave to Conduct Discovery [66 and 75] ("Motions for Discovery"), and the government's Response [76]. For the reasons stated below, the undersigned RECOMMENDS that the Motion to Vacate [65] be DISMISSED as time barred, and Mr. Hine's Motions for Discovery [66 and 75] are DENIED as moot.

I. PROCEDURAL HISTORY

A federal grand jury in the Northern District of Georgia returned a two-count indictment against Mr. Hine charging him in Count One with traveling with the intent to engage in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b), and in Count Two with enticement of a minor for sexual activity, in violation of 18 U.S.C. § 2422(b). (Indict. [1].) Mr. Hine entered a binding guilty plea to both counts, pursuant to a negotiated plea agreement, which provided that the Court would impose the mandatory minimum sentence of 120 months of imprisonment. (Guilty Plea and Plea Agreement [53]; Plea Tr. [73].) The plea agreement also included an appeal waiver provision, which provided that Mr. Hine

voluntarily and expressly waives the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding (including, but not limited to, motions filed pursuant to 28 U.S.C. § 2255) on any ground, except that [Mr. Hine] may file a direct appeal of an upward departure or a variance from the sentencing guideline range as calculated by the district court.

(Guilty Plea and Plea Agreement 6.) Mr. Hine signed the plea agreement and a separate certification section, which states in relevant part:

I understand that the appeal waiver contained in the Plea Agreement will prevent me, with the narrow exceptions stated, from appealing my conviction and sentence or challenging my conviction and sentence in any post-conviction proceeding. No one has threatened or forced me to plead guilty, and no promises or inducements have been made to me other than those discussed in the Plea Agreement.

(Id. at 9-10.) Additionally, at the plea hearing, the Court reviewed the terms of the appeal waiver provision of the plea agreement and its consequences, and Mr. Hine affirmed that he understood the effect of the waiver. (Plea Tr. 12-13.)

At the sentencing hearing, the Court approved the plea agreement, determined that Mr. Hine's guideline range was 108 to 135 months of imprisonment, and sentenced Mr. Hine to the agreed upon sentence of 120 months of imprisonment. (Sentencing Hr'g Tr. [74] 3.) The Court entered judgment [59] on December 20, 2013. Mr. Hine did not file a direct appeal.

Mr. Hine filed this Motion to Vacate on February 10, 2015.[1] (Mot. Vacate 15.) As grounds for relief, Mr. Hine alleges: (1) ineffective assistance of counsel for, among other things, failure to file a direct appeal; (2) prosecutorial misconduct; (3) judicial error; and (4) misconduct by other "local, state, and federal authorities" in violation of his constitutional rights. (Id. at 4-7, 9-10.) Mr. Hine further moves the Court for leave to conduct discovery in order to support the merits of his grounds for relief. (See generally Motions for Discovery.) As to the timeliness of his Motion to Vacate, Mr. Hine asserts, in relevant part, that his attorneys failed to file a direct appeal. (Mot. Vacate 14; Resp. to Order [71] 2-3; Hine Aff. [71-1].) The government responds that the Motion to Vacate is time barred and that Mr. Hine has not met his burden to show that he is entitled to equitable tolling. (Gov't Br. [76].)

II. DISCUSSION

A § 2255 motion is subject to a statutory one-year limitation period, which runs from the latest of the following:

(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 the movant was prevented ...

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