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Chavis v. United States

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

May 9, 2018

ERIC D. CHAVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Michael H. Watson Judge

          ORDER and REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 238.) This matter is before the Court on the motion to vacate and supplemental memorandum in support, Respondent's Response in Opposition, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge 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 (ECF No. 247) and request for an evidentiary hearing are DENIED. The Motion for Correcting any and all Procedural Filings (ECF No. 252) is DENIED, as moot.[1]

         Facts and Procedural History

         On June 7, 2016, Petitioner pleaded guilty pursuant to the terms of his Plea Agreement to Count One of the Indictment, which charged him with conspiracy to produce child pornography or using a minor to engage in sexually explicit conduct for the purpose of producing or transmitting a visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a), (e). (ECF Nos. 202, 204.) On September 29, 2016, the Court imposed 180 months imprisonment, to be followed by ten years of supervised release. (ECF No. 222.) Petitioner did not file an appeal.

         On November 6, 2017, he filed a Motion for Extension of Time to File § 2255 Motion.[2](ECF No. 234.) On November 9, 2017, the Court denied that motion. (Order, ECF No. 236.)

         On November 21, 2017, Petitioner filed the instant Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 238.) He indicates that, on November 16, 2017, he submitted the motion with prison officials for mailing. (ECF No. 238-1, PAGEID # 831.) Petitioner asserts that he was denied effective assistance of counsel, as his guilty plea was unlawfully induced and involuntarily made without an understanding of the consequences of the guilty plea (claim one); because his attorney failed to file an appeal (claim two); because his attorney failed to move for dismissal of the Indictment (claim three); and because defense counsel failed to object to the enhancement of Petitioner's sentence under U.S.S.G. § 4B1.5 (claim four). It is the position of the Respondent that the motion to vacate should be dismissed as untimely, and alternatively that Petitioner's claims are without merit.

         Statute of Limitations

         28 U.S.C. § 2255(f) provides for a one-year statute of limitations in connection with the filing of federal habeas corpus petitions, 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 ...

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