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Dam v. United States

United States District Court, S.D. Georgia, Brunswick Division

February 13, 2017

LEON BUU DAM, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Leon 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 this case.

         BACKGROUND

         Dam was 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.

         DISCUSSION

         On 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.)

         The Court addresses the Government's assertion.

         I. Whether Dam's Motion was Timely Filed

         To 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 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 from making a motion by such governmental action;
(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 ...

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