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Lewis v. United States

United States District Court, N.D. Texas, Dallas Division

April 19, 2019

JAMES LEWIS, #46457-177 Movant,
v.
UNITED STATES OF AMERICA, Respondent.

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

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.

         Movant James Lewis, a federal prisoner, filed a pro se motion to vacate, set-aside, or correct sentence under 28 U.S.C. § 2255. The District Court referred the resulting civil action to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the following reasons, the Court should summarily dismiss the action as barred by the statute of limitations.

         I.

         Movant pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and possession with the intent to distribute a controlled substance, in violation of 21 U.S.C. §841(a)(1) and (b)(1)(c). (Crim. Doc. 18, 54).[1] On February 24, 2014, the District Court sentenced him to 210 months in prison. (Crim. Doc. 45, 52). Movant filed a direct appeal, and the Fifth Circuit affirmed his sentence on December 15, 2014. United States v. Lewis, 587 Fed.Appx. 223 (5th Cir. 2014). He then filed a petition for a writ of certiorari, which the Supreme Court denied on November 30, 2015. Lewis v. United States, 136 S.Ct. 536 (2015).

         Movant filed the instant § 2255 motion on November 17, 2017.[2] He argues the District Court erred by enhancing his sentence as a career criminal and by failing to issue an order for him to receive “time credits” for time he served prior to his sentencing, (Doc. 5 at 4-22). He further argues that the prosecution committed a Brady violation by withholding evidence favorable to him. (Id. at 25). On October 29, 2018, the government filed a response arguing Movant's claims are untimely, procedurally barred, and noncognizable. (Doc. 15). Movant filed a reply arguing that his motion is timely and requesting a decision on the merits. (Doc. 16).

         II.

         The Antiterrorism and Effective Death Penalty Act of 1996 establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub. L. 104-132, 110 Stat. 1214 (1996) (“AEDPA”). 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 filing by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if the 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.

See 28 U.S.C. § 2255(f).

         In most cases, the limitations period begins to run when the judgment becomes final. See 28 U.S.C. § 2255(f)(1). Here, Movant's conviction became final on November 30, 2015, when the Supreme Court denied Movant's writ of certiorari. See Clay v. United States, 537 U.S. 522, 527 (2003) (holding that “[f]inality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires”). Movant then had one year, or until November 30, 2016, to file his § 2255 motion. Movant did not file his motion until November 17, 2017-almost one year beyond the expiration of the AEDPA limitations period. His motion is thus untimely under § 2255(f)(1).

         Movant argues his motion is timely because the AEDPA limitations period should not start running until he was moved from state to federal custody. He argues that although his conviction became final in the underlying criminal case on November 30, 2015, he remained in state custody until September 26, 2017. Thus, Movant argues, his AEDPA limitations period began on that date and did not expire until September 26, 2018. Movant is incorrect. The Fifth Circuit has held “that 28 U.S.C. § 2255 is available to a prisoner in state custody attacking a federal sentence scheduled to be served in the future.” Simmons v. United States, 437 F.2d 156, 159 (5th Cir. 1971); see also See United States v. Tamfu, 3:01-CV-1719-P, 2002 WL 31452410, at *6 ...


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