United States District Court, N.D. Georgia, Gainesville Division
ELIO PENALOSA-DUARTE, BOP Reg. # 21453-057, Movant,
UNITED STATES, Respondent.
MAGISTRATE JUDGE'S FINAL REPORT AND
RECOMMENDATION MOTION TO VACATE 28 U.S.C. §
CLAY FULLER UNITED STATES MAGISTRATE JUDGE
a federal prisoner, has filed a 28 U.S.C. § 2255 motion
to vacate the 108-month sentence he received on December 21,
2016, after the entry of his guilty plea in this Court. (Doc.
63; see Doc. 58). “If it plainly appears from the
[§ 2255] motion, any attached exhibits, and the record
of prior proceedings that the moving party is not entitled to
relief, the [court] must dismiss the motion . . . .”
Rule 4 Governing § 2255 Proceedings; see also Day v.
McDonough, 547 U.S. 198, 209-10 (2006) (“district
courts are permitted . . . to consider, sua sponte,
the timeliness of a state prisoner's habeas petition,
” but “before acting on its own initiative, a
court must accord the parties fair notice and an opportunity
to present their positions”).
dated his unsigned § 2255 motion on November 1, 2018.
(Doc. 63 at 4). He raises only one claim: “On this
particular case at the hearing of sentence Mr.
Penaloza-Duarte counsel [sic] failed to argue that the
sentences should have been running concurrently instead of
consecutive.” (Id. at 3). The Court notes that
Movant's sentences do in fact run concurrently.
(See Doc. 58 at 2).
The § 2255 Motion Is Time-Barred.
U.S.C. § 2255 motion is governed by a one-year statute
of limitations, which runs from the latest of the following
(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;
(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).
one of the circumstances set forth in subparagraphs two
through four above-and there is no indication that any such
circumstance exists here-the limitations period begins to run
when a § 2255 movant's judgment of conviction
Judgment & Commitment Order was entered on December 22,
2016, and his convictions became final under §
2255(f)(1) on January 5, 2017, at the close of the 14-day
direct appeal window. See Fed. R. App. P. 4(b)(1).
Movant thus had until January 5, 2018 to file a timely §
2255 motion, and he failed to do so.
In most cases, a judgment of conviction becomes final when
the time for filing a direct appeal expires. Akins v.
United States, 204 F.3d 1086, 1089 n.1 (11th Cir. 2000).
There are two recognized exceptions to this general rule,
which apply when a federal prisoner seeks direct appellate
review of her conviction or sentence. First, if, following
the disposition of her direct appeal, a federal prisoner
files a petition for a writ of certiorari with the U.S.
Supreme Court, the conviction becomes final when the Supreme
Court either denies certiorari or issues a decision on the
merits. See Washington v. United States, 243 F.3d
1299, 1300 (11th Cir. 2001). Second, if the federal prisoner
does not file a timely certiorari petition after disposition
of her direct appeal, the conviction becomes final on the
date on which the prisoner's time for filing such a
petition expires, which is 90 days after the entry of
judgment on direct appeal. See Clay v. United
States, 537 U.S. 522, 532 (2003). Here, neither
exception applies because Ramirez did not file a direct
appeal of her conviction.
Ramirez v. United States, 146 Fed.Appx. 325, 325-26
(11th Cir. 2005) (rejecting appellant's assertion that
“because she filed her § 2255 motion within 1 year
and 90 days of the entry of her written judgment of
conviction, her motion was timely”; and ruling that her
“conviction became final on May 12, 2003, ” when
the time expired for her to file a direct appeal, “and,
therefore, her § 2255 motion, which was filed on July
28, 2004, was untimely”); see Sup. Ct. R. 13.1
(“[A] petition for a writ of certiorari to review a
judgment in any case, civil or criminal, entered by . . . a