United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
Buu Dam (“Dam”), who is currently incarcerated at
the United States Penitentiary in Atlanta, Georgia, has filed
a Motion to Vacate, Set Aside, or Correct his Sentence
pursuant to 28 U.S.C. § 2255. (Doc. 1.) Respondent filed
a Response, (doc. 4), and Dam filed a Reply, (doc. 5). For
the reasons which follow, I RECOMMEND the Court DISMISS
Dam's Motion, DENY Dam in forma pauperis status
on appeal, and DENY Dam a Certificate of Appealability. I
also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE
charged in this Court with: making a destructive device, in
violation of 26 U.S.C. § 5861(f); possession of an
unregistered firearm or destructive device, in violation of
26 U.S.C. § 5861(d); using, carrying, and brandishing a
destructive device during a crime of violence, in violation
of 18 U.S.C. § 924(c); using explosive materials during
the commission of a federal felony, in violation of 18 U.S.C.
§ 844(h); and malicious use of explosive materials, in
violation of 18 U.S.C. § 844(i). Indictment, United
States v. Dam, 2:11-cr-22 (S.D. Ga. June 8, 2011), ECF
No. 1. Dam pleaded guilty to the use of explosives in
commission of a federal felony and the malicious use of
explosive materials. Plea Agreement, United States v.
Dam, 2:11-cr-22 (S.D. Ga. Feb. 28, 2013), ECF No. 65, p.
2. Chief Judge Lisa Godbey Wood sentenced Dam to 180
months' imprisonment, which consisted of a 60-month
sentence for the use of explosive materials during the
commission of a felony and a 120-month sentence for the
malicious use of explosive materials, to be served
consecutively. J., United States v. Dam, 2:11-cr-22
(S.D. Ga. Aug. 28, 2013), ECF No. 72, pp. 1-2. Chief Judge
Wood entered judgment on August 26, 2013. Id. at p.
1. Dam did not file an appeal.
August 25, 2015, Dam executed his Section 2255 Motion. (Doc.
1, p. 13.) His Motion was filed in this Court on August 31,
2015. (Doc. 1.) Dam contends his counsel, John Brewer,
rendered ineffective assistance by withdrawing a request for
a second competency hearing and by coercing Dam to plead
guilty by failing to properly explain the consequences of the
proceedings. (Id. at pp. 4-5.) The Government
asserts Dam's Motion should be dismissed because it is
untimely and meritless. (Doc. 4, pp. 5, 8.)
Court addresses the Government's assertion.
Whether Dam's Motion was Timely Filed
determine whether Dam's Motion was filed in a timely
manner, the Court must look to the applicable statute of
limitations periods. Motions made pursuant to 28 U.S.C.
§ 2255 are subject to a one-year statute of limitations
period. 28 U.S.C. § 2255(f). This limitations 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