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McCoy v. USA

United States District Court, S.D. Ohio, Eastern Division

May 8, 2017

CHARLES C MCCOY, Petitioner,
v.
USA, Respondent.

          ALGENON L. MARBLEY JUDGE.

          REPORT AND RECOMMENDATION AND ORDER

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         This case is before the Court on Petitioner Charles C. McCoy's Motion to Vacate under 28 U.S.C. § 2255 (Doc. 34), the government's response (Doc. 36), and Petitioner's Reply (Doc. 37). For the following reasons, the Undersigned RECOMMENDS that the Motion to Vacate under 28 U.S.C. § 2255 be DENIED and that this action be DISMISSED. Petitioner's Motion to Appoint Counsel (Doc. 38) is DENIED.

         I. FACTS AND PROCEDURAL HISTORY

         On February 4, 2013, Petitioner pled guilty to a two-count Bill of Information charging him with Conspiracy to Possess with the Intent to Distribute More than 100 kilograms of Marijuana and Aiding and Abetting in Operating an Unlicensed Money Transmitting Enterprise. (Doc. 12; Minute Entry for Proceedings). As part of the Plea Agreement, Petitioner acknowledged that: “[T]he Court has not yet determined a sentence, and acknowledges that any estimate of a probable sentencing range that he may have received, or may receive in the future, from the defendant's counsel, the United States, or the Probation Department, is a prediction, not a promise, and is not binding on the United States, the Probation Department, or the Court. (Doc. 2; Plea Agreement). On June 14, 2013, the Court sentenced Petitioner to ninety-six (96) months of incarceration, and the Judgment was docketed on July 10, 2013. (Doc. 19). Petitioner did not appeal.

         Petitioner then filed this case pursuant to 28 U.S.C. § 2255. He alleges that he “was deprived [of] effective assistance of counsel, ” in violation of the Sixth Amendment, “due to counsel's failure to adequately argue the appointment of U.S.S.G. § 5G1.3(b).” (Doc. 34 at 2).

         II. DISCUSSION

         A. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified at 28 U.S.C. § 2255, governs this case. The statute provides:

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 ...

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