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United States v. Gardner

United States District Court, Sixth Circuit

May 20, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
TROY D. GARDNER, Defendant. Criminal No. 09-cr-147-KKC-CJS.

REPORT AND RECOMMENDATION

CANDACE J. SMITH, Magistrate Judge.

On June 9, 2012, Defendant Troy D. Gardner filed a pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (R. 138).[1] On October 29, 2012, after being granted two requested extensions, the United States filed a Response to Defendant Gardner's § 2255 Motion (R. 161), and a Motion to Dismiss Gardner's § 2255 Motion (R. 162), to which Gardner filed a Response (R. 168). The United States requested and was granted the opportunity to file a Supplemental Response to address whether Gardner's transfer to a facility in this jurisdiction impacted its arguments. (R. 173). Gardner was given an opportunity to respond to the Supplemental filing, but did not do so. (R. 175).[2] Having all relevant documents before the Court, this matter is now ripe for consideration and preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, it will be recommended that the District Court deny Defendant's § 2255 Motion.[3]

I. Procedural Background

On May 13, 2010, Defendant entered a plea of guilty to Count 2 of the Indictment, which charged him with possession with intent to distribute five grams or more of a mixture or substance containing a detectable amount of cocaine (crack) in violation of 21 U.S.C. § 841(a)(1). The Government agreed to dismiss the remaining five counts. (R. 58). On December 7, 2010, the District Court sentenced Defendant to a prison term of forty-two months, to run concurrent to his sentence in an unrelated state matter, with four years of supervised release to follow. (R. 109).

On January 11, 2011, the Court entered an Amended Judgment to correct a clerical error that is not relevant to the current motion. ( See R. 113, 114). Although reserving his right to appeal the denial of his pretrial motion to suppress and his sentence, Defendant did not file a direct appeal. Therefore, the Amended Judgment became final on January 25, 2011, fourteen days after its entry, when the time to file his notice of appeal expired without him having done so. See Johnson v. United States, 457 F.Appx. 462, 464-65 (6th Cir. 2012).

On April 2, 2012, Defendant began sending letters to presiding District Judge Karen Caldwell and/or the Clerk of Court regarding issues raised in the pending motion. (R. 132, 134, 136). On June 9, 2012, Defendant filed the pending Motion to Vacate, Set Aside, or Correct Sentence. (R. 138). Defendant's motion presents five grounds for relief: (1) that he has not received credit towards his federal sentence for time served in state custody prior to the state turning the matter over to the federal authorities; (2) violation of the Interstate Agreement on Detainers; (3) violation of the Speedy Trial Act; (4) ineffective assistance of counsel for failing to raise issues of violation of both the Interstate Agreement on Detainers and the Speedy Trial Act; and (5) repeats his argument that his federal sentence should be run fully concurrent with state sentence, including time served on state sentence prior to his federal sentencing.

II. Analysis

A. Statute of Limitations

Section 2255 motions are subject to a one-year statute of limitations, which begins to 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.

28 U.S.C. § 2255(f). Here, Gardner's conviction became final on January 25, 2011, fourteen days after entry of the Amended Judgment, when the time to file his notice of appeal expired without him having done so. See Johnson v. United States, 457 F.Appx. 462, 464-65 (6th Cir. 2012). (R. 86). Therefore, he had until January 25, 2012, to file a § 2255 motion. Since he did not file the ...


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