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Branch v. United States

United States District Court, Fifth Circuit

November 26, 2013

DWIGHT ROMARO BRANCH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

DAVID L. HORAN, Magistrate Judge.

Petitioner Dwight Romaro Branch, a federal prisoner, has submitted a motion to file an out-of-time 28 U.S.C. § 2255 motion [Dkt. No. 2] and an accompanying motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the motion to file an out-of-time petition should be denied, and the Section 2255 motion should be dismissed on limitations grounds.

Background

Petitioner pled guilty to two counts of bank robbery, one count of using a firearm during a crime of violence, and two counts of being a felon in possession of a firearm. He was sentenced to a total term of 20 years of imprisonment in May 1993. See United States v. Branch, No. 3:93-cr-0004-G (N.D. Tex. May 26, 1993).[1] He did not file a direct appeal or collaterally challenge his federal sentence in any proceeding. Now, over 20 years after his conviction, he has filed this motion to vacate, set aside, or correct sentence.

In one ground for relief, Petitioner contends that his guilty plea was unknowing and involuntary because there was no factual basis for his guilty plea to the two counts of being a felon in possession of a firearm, he was not properly informed of the statutory range of imprisonment for using a firearm in furtherance of a crime of violence, and he did not understand that his federal sentences would run consecutively to his state sentence. See Dkt. No. 7. The United States has submitted a preliminary response to Petitioner's Section 2255 motion in which it argues that this case is barred by the Antiterrorism and Effective Death Penalty Act ("AEDPA") statute of limitations. See Doc. No. 11. Respondent has also addressed Petitioner's motion to file an out-oftime petition. See Dkt. No. 14. Petitioner addressed the limitations issue in the motion to file an out-of-time petition. See Dkt. No. 2.

Legal Standards

Section 2255 proceedings are governed by a one-year statute of limitations. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996, Pub.L. 104-132, 110 Stat. 1214 (1996), codified at 28 U.S.C. § 2255(f). The statute provides that the limitations period shall run 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 exercise of due diligence.

Id. The one-year limitations period is also subject to equitable tolling in "rare and exceptional circumstances." See, e.g., United States v. Riggs, 314 F.3d 796, 800 n.9 (5th Cir. 2002) (citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).

The United States Supreme Court has determined that the AEDPA statute of limitations can be overcome by a showing of "actual innocence." See McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). However, the actual innocence gateway is only available to a movant who 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 ...


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