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Durham v. United States

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

August 1, 2019

CLIFFORD DURHAM, JR., Movant,
v.
UNITED STATES OF AMERICA, Respondent.

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

          FINAL REPORT AND RECOMMENDATION

          RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE.

         This matter has been submitted to the undersigned Magistrate Judge for consideration of Clifford Durham, Jr.'s “Application for Writ of Habeas Corpus, ” [Doc. 33], which the Court construed, after notice to Durham, as a 28 U.S.C. § 2255 motion to vacate, see [Doc. 32].[1] For the reasons that follow, the undersigned finds that this § 2255 motion is time barred and RECOMMENDS that this action be DISMISSED pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings (hereinafter “Rule 4(b)”).[2]

         I. PROCEDURAL HISTORY

         Following his convictions for possession of a firearm by a felon and unlawful transfer of a firearm, the Court sentenced Durham, on April 28, 1995, to ninety-six months of imprisonment followed by thirty-six months of supervised release. [Docket Entry dated 04/28/1995; Doc. 29]. Durham's subsequent appeal was dismissed on or about November 6, 1995. [Docs. 25; 28].

         Durham filed this pro se § 2255 motion on May 15, 2019.[3] [Doc. 33-1 at 4]. Durham raises the following grounds for relief: (1) his guilty plea was invalid because the Court failed to fully explain the elements of the crimes to which he was pleading guilty and because he was not properly informed of his constitutional rights during the plea colloquy, including his right to a trial by jury and the “presumption of innocence”; (2) the Court failed to inform him of his rights to appeal and to assistance of counsel to prepare an appeal; (3) “his conviction was defective because he was not made aware of . . . the permissible range of punishment”; (4) both the Court and his attorney failed to inform him that he would not be eligible for parole; (5) his attorney failed to inform him of his rights prior to sentencing, and the record does not indicate that he was advised of his rights; (6) his attorney allowed him to go forward with his plea, even though counsel knew that he had used drugs the night before; and (7) the Court failed to inform him that he had a right to address the Court “with mitigation toward any punishment that [he] might receive.” [Docs. 33; 33-1].

         II. DISCUSSION

         A § 2255 motion is subject to a statutory one-year limitation period, which runs from the latest of the following:

(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). In this case, there is no claim that the circumstances set forth in subparagraphs (2) through (4) of § 2255(f) apply. Thus, pursuant to subparagraph (1), the one-year limitations period began to run when Durham's conviction became final. Because Durham's conviction became final before April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, he had until April 24, 1997, to file his § 2255 motion. Akins v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000). However, Durham did not file this § 2255 motion until May 15, 2019, at least twenty-two years after the statute of limitations expired; therefore, it is not timely under § 2255(f)(1).

         Durham does not contend that he is actually innocent and has not alleged extraordinary circumstances that might excuse the late filing of his § 2255 motion. See McQuiggin v. Perkins, 569 U.S. 383, 386, 401 (2013) (A plea of actual innocence can overcome the one-year limitations period for filing a federal habeas corpus action if the movant “presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” (citing Schlup v. Delo, 513 U.S. 298, 316 (1995)); Outler v. United States, 485 F.3d 1273, 1280 (11th Cir. 2007) (per curiam) (“The statute of limitations can be equitably tolled where a petitioner ‘untimely ...


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