United States District Court, E.D. Kentucky, Central Division, at Lexington
MEMORANDUM OPINION & ORDER
JOSEPH M. HOOD, District Judge.
This matter is before the Court on the Report and Recommendation entered by Magistrate Judge Robert E. Wier [DE 110]. Said action was referred to the magistrate for the purpose of reviewing the merit of Defendant's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255 [DE 98]. In his Report and Recommendation, the Magistrate Judge recommends that the Court dismiss Evans' Motion as untimely in light of the one year statute of limitations for claims brought under 28 U.S.C. § 2255(f). Defendant Evans has filed Objections [DE 111] to that Recommendation in a timely fashion, and this matter is ripe for consideration. For the reasons stated below, the Motion will be denied as time-barred. Judgment will issue by separate order.
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of a magistrate judge's report and recommendation. See Fed.R.Civ.P. 72(b)(2). If objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). Objections must be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). "Only those specific objections to the magistrate's report made to the district court will be preserved for appellate review." Carson v. Hudson, 421 F.Appx. 560, 563 (6th Cir. 2011) (quoting Souter v. Jones, 395 F.3d 577, 585-86 (6th Cir. 2005)).
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became effective. Section 2255 provides in relevant part:
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 becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution of 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).
In September 2011, Defendant pled guilty to one count of distribution of child pornography and one count of receipt of child pornography. [DE 45.] In December 2011, the undersigned sentenced Evans to 135 months of imprisonment and a lifetime term of supervised release. [DE 61.] The Sixth Circuit affirmed Defendant's conviction and sentence on November 8, 2012. [DE 94.] Evans filed a petition for rehearing en banc, which the Sixth Circuit denied on February 1, 2013. [DE 84, 100.] The Court of Appeals issued its mandate on February 11, 2013. [DE 95.] Defendant then filed a petition for a writ of certiorari at the United States Supreme Court on April 2, 2013, [DE 96], which was denied on June 24, 2013. [DE 97;] see also Evans v. United States, 133 S.Ct. 2873 (2013) (table). On October 7, 2013, the Supreme Court denied Evans's petition for rehearing. See Evans v. United States, 134 S.Ct. 398 (2013) (table). Defendant's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255 [DE 98] was filed on September 25, 2014.
In response to the court's order requiring him to show cause why his Motion should not be dismissed as untimely and in his objections to the Magistrate Judge's Report and Recommendation, Evans argues that his petition is timely because it was filed within one year of the Supreme Court's denial of his motion for rehearing on October 7, 2013 [DE 103 at 1]. By contrast, the United States argues that a petition for rehearing in the Supreme Court does not delay commencement of the statute of limitations [DE 109 at 2] and that the time to file Defendant's petition began to run on ...