Opinion
CASE NO. 2:11-CV-823 CRIM. NO. 2:09-CR-00033
10-14-2014
KELVIN D. BEARD, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Magistrate Judge Elizabeth P. Deavers
OPINION AND ORDER
On September 16, 2014, the Magistrate Judge issued a Report and Recommendation recommending that Petitioner's Motion to Reopen Proceedings (ECF No. 107) pursuant to Rule 60(b) of the Federal Rules of Procedure be denied. Petitioner has filed an Objection (ECF No. 122) to the Magistrate Judge's Report and Recommendation.
Petitioner seeks reconsideration of this Court's March 27, 2013, dismissal of his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 as barred by the one-year statute of limitations. He objects to the Magistrate Judge's recommendation of denial of this request. He again asserts that he is actually innocent of his Georgia conviction on possession of marijuana with the intent to distribute and that he has been denied the effective assistance of counsel because his attorney failed to raise the issue at sentencing or raise "other meritorious claims." Objection, ECF No. 122, PageID# 557. Petitioner additionally again asserts that his pro se status justifies equitable tolling of the statute of limitations. He blames his untimely filing on the bad advice of the prosecutor, who told him that if he filed a § 2255 petition, it would delay the filing of a Rule 35 motion.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons already well detailed in the Magistrate Judge's Report and Recommendation, Petitioner has failed to persuade this Court that it should reopen its decision denying this § 2255 petition as time-barred. Petitioner's Objection (ECF No. 122) is OVERRULED. The Report and Recommendation (ECF No. 120) is ADOPTED and AFFIRMED. Petitioner's Motion to Reopen Proceedings (ECF No. 107) is DENIED.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
United States District Judge