United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.
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.
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,
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.
filed the instant § 2255 motion on November 17,
2017. 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).
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
(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).
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 §
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 ...