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Johnson v. United States

United States District Court, D. Maryland

May 23, 2014

AYANNA JOHNSON, XXXXX-XXX
v.
UNITED STATES OF AMERICA Crim. Case No. CCB-09-547

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

Respondent has filed a response requesting dismissal of Ayanna Johnson's Motion to Vacate, Set Aside, or Correct Sentence as time-barred. (ECF No. 202). Johnson, who is selfrepresented, has filed a reply in opposition. (ECF No. 203).[1]

After reviewing the parties' submissions, the court finds that no hearing is necessary. See Rule 8(a), Rules Governing Section 2255 Cases in the United States District Courts; Local Rule 105.6 (D. Md. 2011). For the reasons stated herein, the motion to vacate, set aside, or correct sentence (ECF No. 188) will be dismissed as time-barred and a certificate of appealability will not issue.

BACKGROUND

On July 28, 2011, Johnson pleaded guilty to Conspiracy to Commit Bank Fraud (Count One) and Aggravated Identity Theft (Count 31) in violation of 18 U.S.C. § 1349 and § 1028A. On April 3, 2012, Johnson was sentenced to 46 months on Count One, followed by a consecutive 24 months on Count 31, for a total of 70 months in prison. She was also sentenced to supervised release for a term of three years on Count One, with a concurrent term of one year of supervised release on Count 31, and she was ordered to pay $609, 989.06 in restitution. This sentence was reflected in the judgment that was entered on April 6, 2012. (ECF No. 141). Petitioner, who waived the right to appeal in the plea agreement, did not file a direct appeal.

Johnson's petition was received by the Clerk on September 20, 2013. (ECF No. 188). For the purposes of assessing timeliness, the motion is deemed filed on August 25, 2013, the date Johnson signed it and presumably placed it in the prison mail system. See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that a prisoner's mail is deemed filed when the prisoner delivers it to prison officials for mailing). On November 1, 2013, the court directed the government to file a response addressing the timeliness of the petition. (ECF No. 195).

DISCUSSION

I. LIMITATIONS PERIOD

A one-year period of limitation applies to motions to vacate, set aside, or correct under 28 U.S.C. § 2255(f) which 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 ...

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