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Rives v. United States

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

November 30, 2018

KAMALI RIVES, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER MOTION TO VACATE 28 U.S.C. § 2255

          JANET F. KING UNITED STATES MAGISTRATE JUDGE.

         Movant has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence entered in this Court under the above criminal docket number. The matter is before the Court on the motion to vacate [297] and Respondent's response [302]. The docket does not show that Movant has filed a reply within the time directed by the Court [298], and the matter is ready for disposition. For the reasons discussed below, the undersigned recommends that Movant's motion to vacate be dismissed as untimely and that a certificate of appealability (COA) be denied.

         I. Background

         The grand jury for the Northern District of Georgia charged Movant on one count of bank fraud conspiracy, ten counts of bank fraud, seven counts of access device fraud, and five counts of aggravated identity theft. (Indictment, ECF No. 1). On December 16, 2015, represented by Jay Strongwater, Movant pleaded guilty to all counts. (Plea With Counsel, ECF No. 205-1). On March 4, 2016, the Court imposed a total 234-month term of imprisonment. (Corrected J., ECF No. 219; Sentencing Tr. at 127, ECF No. 244). On March 28, 2017, the Eleventh Circuit Court of Appeals affirmed the judgment against Movant. (USCA Op., ECF No. 262). The record does not indicate that Movant sought further direct review.

         On June 29, 2018, Movant filed his § 2255 motion, signed on June 28, 2018.[1] (Mot. to Vacate, ECF No. 297). Therein, Movant asserts that he received ineffective assistance of counsel in regard to objections to the presentence investigation report (PSR) and at sentencing. (Id. at 5-6, 8-9). Movant left blank “Place of Confinement” on the § 2255 motion and provided a non-prison address on his mailing label. (Id. at 1; Envelope, ECF No. 297-1).

         Respondent argues that this action should be dismissed as untimely because Movant, an absconder, is not entitled to application of the prisoner mailbox rule and because his motion is untimely based on the June 29, 2018, filing date and is untimely even if it is deemed filed on the date that he signed it. (Resp't Resp. at 3-7, ECF No. 302 (stating that Movant's status with the Federal Bureau of Prisons (BOP) was last checked by Respondent on August 8, 2018)).

         Movant has not replied. A review of the BOP's website shows that Movant is “NOT IN BOP CUSTODY[.]” See https://bop.gov/inmateloc/ (follow “Find By Number” hyperlink, number 65922-019) (last visited Nov. 28, 2018).

         II. Discussion

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a one-year statute of limitations applies to § 2255 motions. Daniels v. United States, 809 F.3d 588, 589 (11th Cir. 2015), cert. denied, ___U.S. ___, 137 S.Ct. 40 (2016). The one-year statute of limitations runs from the latest of,

(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 ...

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