United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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.)
The Motion Is Untimely.
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
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
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. ...