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Gwinn v. United States

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

June 18, 2018

BRIAN GWINN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE

         Petitioner Brian Gwinn filed with this Court a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his federal sentence. The motion is before the Court for initial review as required by Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts. For the reasons set forth below, the Court REPORTS and RECOMMENDS the § 2255 motion be DISMISSED as untimely, and this civil action be CLOSED.

         I. BACKGROUND

         On April 8, 2015, the grand jury in the Southern District of Georgia charged Petitioner with one count of theft of public money, in violation of 18 U.S.C. § 641. United States v. Gwinn, CR 315-004, doc. no. 2 (S.D. Ga. Apr. 8, 2015). On August 20, 2015, Petitioner, represented by court-appointed attorney Lance Hamilton, pled guilty to the one charge. Id., doc. nos. 47-49. In exchange for Petitioner's guilty plea, the government agreed to not object to a recommendation for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and move for an additional one level decrease under U.S.S.G. § 3E1.1(b) if the offense level was sixteen or greater. Id., doc. no. 48, p. 3.

         Upon entry of the guilty plea, the United States Probation Office prepared a Presentence Investigation Report (“PSI”) which set Petitioner's Total Offense Level at ten, Criminal History Category at I, and Guideline imprisonment range at six to twelve months. PSI ¶ 23, 27, 51. On October 14, 2015, Petitioner filed a sentencing memorandum asking the Court not to sentence him to incarceration. CR 315-004, doc. no. 51. On October 19, 2015, United States District Judge Dudley H. Bowen, Jr., sentenced Petitioner to no imprisonment, five years of probation, a special assessment of $100.00, and $41, 371.70 in restitution. Id., doc. no. 54. The judgment was entered on October 21, 2014. Id., doc. no. 56. Petitioner did not file a direct appeal.

         Petitioner signed the instant § 2255 motion on May 30, 2018. (Doc. no. 1, p. 12.) Petitioner raises three grounds for relief: (1) defense counsel was ineffective because he “had no intention of mounting a defense”; (2) the “VA manipulated and withheld exculpatory evidence” regarding his case; and (3) “[c]eding of U.S. Title 38 statutory and regulatory control to the federal courts.” (Id. at 4-7.)

         II. DISCUSSION

         A. The Motion Is Untimely.

         28 U.S.C. § 2255(f), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), provides a one-year statute of limitations for § 2255 motions that runs from the latest of four possible dates:

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). Petitioner's judgment of conviction was entered on October 21, 2015, and because Petitioner did not file a direct appeal, his conviction and sentence became final fourteen days later. See Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir. 2000) (explaining that where no timely notice of appeal is filed and motion for leave to file out of time appeal is denied, judgment of conviction final on expiration of deadline for filing notice of appeal); Fed. R. App. P. 4(b)(1). Petitioner signed the present motion on May 29, 2018, and the Clerk docketed the motion on June 15, 2018. ...


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