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Francis v. United States

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

April 17, 2018

EVAN FRANCIS, JR., Movant,
v.
UNITED STATES OF AMERICA, Respondent.

         MOTION TO VACATE 28 U.S.C. § 2255,

          FINAL REPORT AND RECOMMENDATION

          RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE

         This matter has been submitted to the undersigned Magistrate Judge for consideration of Evan Francis's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. 379]. For the reasons that follow, the undersigned finds that this § 2255 motion is time barred and RECOMMENDS that this action be DISMISSED pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings (hereinafter “Rule 4(b)”).[1]

         I. PROCEDURAL HISTORY

         A federal grand jury in the Northern District of Georgia returned a two-count indictment against Francis and six co-defendants, charging Francis in Count One with conspiracy to possess with the intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(ii), and in Count Two with conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). [Doc. 1]. Represented by retained counsel Cathy Alterman (“Alterman”), Francis entered a negotiated guilty plea to both counts. [Doc. 181]. On September 4, 2013, the Court entered judgment, imposing a total sentence of 121 months of imprisonment. [Doc. 295]. Francis did not file a direct appeal.

         Francis filed this pro se § 2255 motion on March 12, 2018.[2] [Doc. 379 at 12]. As grounds for relief, Francis argues that Alterman was ineffective for failing to object that his military service was not included in the presentence investigation report, that the probation officer erred in not providing proof of his military service at sentencing, and that he is entitled to a two-level sentence reduction or a downward departure based on his military service. [Id. at 4-5; Doc. 379-1 at 3-5].

         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 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 exercise of due diligence.

28 U.S.C. § 2255(f). In this case, there is no claim that the circumstances set forth in subparagraphs (2) through (4) of § 2255(f) apply.

         Francis's conviction became final, for purposes of § 2255(f)(1), on September 18, 2013. See Fed. R. App. P. 4(b)(1)(A)(i), (6) (providing that a defendant's notice of appeal must be filed within fourteen days after the written judgment of conviction is entered on the criminal docket); see also Ramirez v. United States, 146 Fed.Appx. 325, 326 (11th Cir. 2005) (per curiam) (For § 2255 statute of limitations purposes, “a judgment of conviction becomes final when the time for filing a direct appeal expires.”) (citation omitted). Because Francis did not ...


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