Opinion
CIVIL ACTION NO. 1:18-CV-881-ODE-CMS CRIMINAL ACTION NO. 1:09-CR-337-3-ODE-CMS
03-01-2018
KEVIN KING, BOP ID 61151-019, Movant, v. UNITED STATES OF AMERICA, Respondent.
MOTION TO VACATE 28 U.S.C. § 2255 FINAL REPORT AND RECOMMENDATION
Federal inmate Kevin King has submitted a pro se motion captioned "§ 2255 / Ineffective Assistance." See [223]. In his § 2255 motion, King alleges that his attorney provided ineffective assistance through "failure to object to the indictment," resulting in a violation of the double jeopardy clause and an unconstitutional sentence. See id. at 1-3. King further contends that this Court improperly calculated the sentencing range for his offenses. See id. at 4.
Federal law provides that a one-year limitation period applies to King's motion, running from the latest to occur of four specified events. See 28 U.S.C. § 2255(f). Here, as in most cases, the relevant event is "the date on which the judgment of conviction bec[ame] final." Id. at (1).
The United States Court of Appeals for the Eleventh Circuit affirmed King's convictions and sentence in this case on October 5, 2011, see [208], so judgment against him became final on January 3, 2012, when his time to file a petition for a writ of certiorari expired, see Clay v. United States, 537 U.S. 522, 524 (2003); S. Ct. R. 13.1.
Therefore, King was required to file his § 2255 motion no later than January 3, 2013, and, because he waited until late February 2018 to do so, see [223] at 5 (undated filing, postmarked Feb. 22, 2018), his motion is clearly untimely.
Accordingly, I RECOMMEND that this case be SUMMARILY DISMISSED. See 28 U.S.C. foll. § 2255, Rule 4(b) ("If it plainly appears from the motion . . . and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.")
I FURTHER RECOMMEND that a Certificate of Appealability be DENIED because King does not meet the requisite standards. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (requiring a two-part showing (1) "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," and (2) "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling"); see also Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc) (holding that the Slack v. McDaniel standard will be strictly applied prospectively).
I DIRECT the Clerk to terminate the referral of this case to me.
SO RECOMMENDED AND DIRECTED, this 1st day of March, 2018.
/s/_________
CATHERINE M. SALINAS
UNITED STATES MAGISTRATE JUDGE