United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255,
FINAL REPORT AND RECOMMENDATION
RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE
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
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.
filed this pro se § 2255 motion on March 12,
2018. [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].
§ 2255 motion is subject to a statutory one-year
limitation period, which runs from the latest of the
(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
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.
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 ...