United States District Court, N.D. Georgia, Atlanta Division
ORDER MOTION TO VACATE 28 U.S.C. § 2255
F. KING UNITED STATES MAGISTRATE JUDGE.
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  and Respondent's
response . The docket does not show that Movant has
filed a reply within the time directed by the Court ,
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.
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.
29, 2018, Movant filed his § 2255 motion, signed on June
28, 2018. (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).
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)).
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.
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
(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