Opinion
CIV 09-4134, CR. 07-40006.
October 9, 2009
MEMORANDUM OPINION AND ORDER
Eric Jon Fowler, has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The Court has conducted the preliminary review required by Rule 4(b) of the Rules Governing Section 2255 Proceedings, and the Court has determined that the motion must be denied as untimely.
On August 6, 2007, Fowler pleaded guilty to one count of mail fraud. On November 5, 2007, this Court sentenced Fowler to fifty months of imprisonment to run consecutively to any previous state or federal sentence and ordered restitution in the amount of $715,902.00. Fowler waived his right to appeal in his plea agreement and he did not appeal his sentence.
The time provided by statute for Fowlers to challenge to his conviction pursuant to 28 U.S.C. § 2255 has passed. Pursuant to 28 U.S.C.A. § 2255(f), the motion to vacate must be filed within one year of 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 exercise of due diligence.
The Judgment of Conviction in this case was filed on November 7, 2007. Fowler did not appeal within the ten days provided for appeal under Federal Rule of Appellate Procedure 4(b). Fowler's § 2255 motion is dated August 31, 2009, and was filed with the Clerk on September 3, 2009, and now it is well beyond the one-year deadline from the date the judgment became final. Fowler contends in his motion that none of the grounds he raises in his § 2255 motion were previously presented because his counsel was ineffective in investigating the legal claims Fowler makes in his § 2255 motion. Fowler's contention does not satisfy the requirements of any of the subsections of 28 U.S.C.A. § 2255(f) which would permit his motion to vacate to be considered timely when it was filed. Accordingly, his motion must be denied as untimely.
IT IS ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is denied as untimely, and this case is dismissed with prejudice.