United States District Court, S.D. Ohio, Eastern Division
TYSIN L. GORDON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ALGENON L. MARBLEY, JUDGE.
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE.
a federal prisoner who is proceeding without the assistance
of counsel, has filed a Motion for Leave to File an Untimely
§ 2255 and Motion to Vacate under 28 U.S.C. §2255.
(ECF Nos. 1623, 1624.) This case has been referred to the
Undersigned pursuant to 28 U.S.C. § 636(b) and
Columbus' General Order 14-1 regarding assignments and
references to United States Magistrate Judges. This matter is
before the Court on its own motion under Rule 4(b) of the
Rules Governing Section 2255 Proceedings in the United States
District Courts. For the reasons that follow, the Undersigned
RECOMMENDS that Petitioner's Motion for
Leave to file an Untimely § 2255 (ECF No. 1623) be
DENIED and that the Motion to Vacate under
28 U.S.C. § 2255 (ECF No. 1624) be
FACTS AND PROCEDURAL HISTORY
challenges his conviction pursuant to the terms of his
negotiated Plea Agreement on conspiracy to commit
racketeering, in violation of 18 U.S.C. § 1962(d).
(Plea Agreement, ECF No. 796, PAGEID # 3678, filed
under seal.) In a Judgment filed on August 4, 2016, the Court
imposed a term of 96 months incarceration, to be followed by
three years supervised release. (ECF No. 1240.)
August 6, 2019, Petitioner filed the motions currently
pending before this Court. (ECF Nos. 1623, 1624.) Petitioner
does not indicate the date that he executed his motions.
(See ECF No. 1623, PAGEID # 19476.) He asserts that
his attorney performed in a constitutionally ineffective
manner by advising him to plead guilty without conducting
adequate investigation (claim one); that his guilty plea was
not knowing, intelligent, or voluntary (claim two); and that
the government committed prosecutorial misconduct by
vindictively pursing charges against him (claim three).
However, the record indicates that the one-year statute of
limitations bars Petitioner's claims.
STATUTE OF LIMITATIONS
one-year statute of limitations applies to the filing of
federal habeas corpus petitions.
U.S.C. § 2255(f) provides:
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(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
(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