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Gordon v. United States

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

August 14, 2019

TYSIN L. GORDON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ALGENON L. MARBLEY, JUDGE.

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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 DISMISSED.

         I. FACTS AND PROCEDURAL HISTORY

         Petitioner 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.)

         On 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.

         II. STATUTE OF LIMITATIONS

         A one-year statute of limitations applies to the filing of federal habeas corpus petitions.

         28 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 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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