Summary
finding that petitioner did not exercise due diligence because he waited between 22 and 24 months after receiving federal sentence to seek vacatur of state conviction
Summary of this case from Hamilton v. U.S.Opinion
CASE NO. 7:06-CV-68(HL), 28 U.S.C. § 2255, CASE NO. 7:03-CR-21.
October 19, 2007
ORDER
Before the Court is a Report and Recommendation (Doc. 104) from United States Magistrate Judge G. Mallon Faircloth that recommends denying Petitioner's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. Petitioner's § 2255 motion asserts that Petitioner's federal sentence should be corrected because state convictions used to enhance his federal sentence were vacated by the state superior court that issued them. Judge Faircloth recommended denying Petitioner's § 2255 motion on the ground that Petitioner did not exercise due diligence as required by Johnson v. United States, 544 U.S. 295 (2005), in pursuing the vacatur of the state convictions. Judge Faircloth reasoned that Petitioner did not exercise due diligence because he waited approximately twenty-two to twenty-fourth months after receiving his federal sentence before seeking vacatur of the state convictions at issue. Petitioner filed an objection (Doc. 107) to Judge Faircloth's recommendation, asserting that Petitioner did exercise due diligence. Pursuant to 28 U.S.C. § 636(b)(1), the Court has thoroughly considered Petitioner's objection and has made a de novo determination of the portion of the recommendation to which Petitioner objects. For the reasons contained in Judge Faircloth's Report and Recommendation, Petitioner did not exercise due diligence in pursuing the state-court vacatur of convictions that were used to enhance his federal sentence. As a result, this Court accepts Judge Faircloth's recommendation, and therefore, Petitioner's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255 is denied.
SO ORDERED.