United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge Alan J. Baverman's Report and Recommendation  ("R&R"). The R&R recommends that Movant Quentarvious Chaney's ("Movant") pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion")  be dismissed as untimely and that a certificate of appealability be denied.
On July 2, 1991, Movant was convicted in DeKalb County, Georgia, of: (1) burglary (case no. 91-CR-1087); (2) two counts of burglary and one count to attempt to commit burglary (case no. 91-CR-3022); and (3) aggravated sodomy and child molestation (case no. 91-CR-1279). On December 19, 2011, Movant was also convicted in DeKalb County, Georgia, of possession of a firearm by a felon (case no. 01-CR-5027).
On March 22, 2008, a grand jury sitting in the Northern District of Georgia returned a one-count Indictment (the "Indictment") , charging Movant with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The Indictment included a forfeiture provision. On July 20, 2009, Movant appeared before the Court and pleaded guilty to the charge .
On February 1, 2010, the Court sentenced  Movant to the mandatory minimum sentence of 180 months of imprisonment, followed by three (3) years of supervised release.
On August 16, 2010, Movant's conviction and sentence were affirmed by the Eleventh Circuit Court of Appeals. See United States v. Chaney, 392 F.Appx. 790, 792 (11th Cir. 2010). Movant did not seek a writ of certiorari from the United States Supreme Court.
On August 10, 2012,  Movant submitted a letter to the Court, which the Magistrate Judge construed as his Motion. Movant argues that his attorney's failure to file a Section 2255 Motion on his behalf warrants equitable tolling of the one-year limitations period. Movant also appears to argue that he should be afforded a later start date for the one-year limitations period under 28 U.S.C. § 2255(f)(3) because his claim challenging his sentence relies upon the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013). Movant contends also that his sentence was improperly enhanced under the ACCA making him "actually innocent of being an Armed Career Criminal under 18 U.S.C. § 924(e)." (See  at 1).
On July 29, 2014, the Magistrate Judge issued his R&R, recommending that the Motion be denied as untimely and that a certificate of appealability be denied.
Movant did not file any objections to the R&R.
A. Legal Standard
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59; Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (internal quotation marks omitted). With respect to those findings and ...