Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Terrell v. United States

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

April 26, 2018

KENDRICK TERRELL, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION

          JUSTIN S. ANAND UNITED STATES MAGISTRATE JUDGE.

         Movant Kendrick Terrell filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on July 23, 2017, [1] in which he raised three claims: (1) his sentence is comprised of unconstitutional double counting because a prior conviction was used to enhance his current sentence; (2) his 240-month sentence was unreasonable; and (3) he received ineffective assistance of counsel because counsel incorrectly advised him about the sentence he would receive. (Doc. 238). For the reasons that follow, the undersigned hereby RECOMMENDS that the Government's motion to dismiss the § 2255 motion [Doc. 243] be GRANTED and that the instant motion to vacate sentence (Doc. 238) be DISMISSED.

         I. Procedural History

         On March 15, 2006, Movant, represented by Chris Jensen, entered a guilty plea to one count of conspiracy to possess with the intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(i) and 841(b)(1)(A)(iii), and one count of aiding and abetting the distribution of cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), and Section 2. (Doc. 134). (Doc. 51; Doc. 217, Attach. 1). On August 11, 2006, Senior U.S. District Judge Orinda D. Evans sentenced Movant to a net total of 240 months of imprisonment to be followed by five years of supervised release, which was entered on August 14, 2006. (Docs. 196, 202). Movant did not file a direct appeal of his convictions and sentences.

         Movant filed the instant pro se § 2255 motion on July 23, 2017, and raises three claims. (Doc. 238). Movant argues that the motion is not barred because he has constitutional claims, he is pro se, he is indigent, and he does not know the law. (Id.). The Government has filed a motion to dismiss the § 2255 motion [Doc. 243], and argues that the instant motion to vacate is untimely and that Movant has not demonstrated that equitable tolling is warranted.[1] The undersigned agrees.

         II. Analysis

         A. The Motion to Vacate is Untimely.

         Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal prisoners must file a 28 U.S.C. § 2255 motion to vacate within one year of the latest of four specified events:

(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 such 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).

         Here, Movant's sentence was entered on August 14, 2006, and he had fourteen (14) days from that date to file an appeal. See Fed. R. App. P. 4(b)(1)(A). Having not filed an appeal, Movant's convictions became final on August 28, 2006, and Movant therefore had until August 25, 2007, to file a ยง 2255 motion. The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.