United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND
S. ANAND UNITED STATES MAGISTRATE JUDGE.
Kendrick Terrell filed a pro se motion to vacate his
sentence pursuant to 28 U.S.C. § 2255 on July 23, 2017,
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.
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.
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. The undersigned agrees.
The Motion to Vacate is Untimely.
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
(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
(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).
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 § 2255 motion. The ...