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United States v. Hambric

United States District Court, Sixth Circuit

August 27, 2013

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
TERRY WAYNE HAMBRIC, Defendant/Movant

MEMORANDUM OPINION

JOSEPH H. McKINLEY, Jr., Chief District Judge.

Movant, Terry Wayne Hambric, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (DN 69). Because the motion appeared to be barred by the applicable statute of limitations, on preliminary consideration under Rule 4 of the Rules Governing Section 2255 Cases in the United States District Courts, the Court directed Movant to show cause within 30 days why his motion should not be denied and his action dismissed as untimely. More than 30 days have passed, and Movant has not responded.

I.

Pursuant to a plea agreement, Defendant pleaded guilty to counts of bank fraud, aggravated identity theft, wire fraud, and uttering forged and counterfeit securities. The Judgment and Commitment was entered on April 10, 2012. Movant did not appeal. He filed the instant § 2255 motion on June 19, 2013.[1]

II.

Under § 2255, a one-year limitation period applies. The statute provides as follows:

(f) A 1-year period of limitation shall apply to a motion under this section.
The limitation 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.

28 U.S.C. § 2255(f).

Movant's judgment of conviction became final on April 24, 2012, the date on which his time to appeal expired. See Sanchez-Castellano v. United States , 358 F.3d 424, 427 (6th Cir. 2004) ("[W]hen a federal criminal defendant does not appeal to the court of appeals, the judgment becomes final upon the expiration of the period in which the defendant could have appealed to the court of appeals, even when no notice was filed."); Fed. R. App. P. 4(b)(1)(A) (a criminal defendant must file notice of appeal within 14 days of the later of the entry of judgment or the filing of ...


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