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Cosey v. United States

August 18, 2008

WILLIE COSEY PETITIONER,
v.
UNITED STATES OF AMERICA RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

Before the Court is Petitioner Willie Cosey's Motion pursuant to 28 U.S.C. § 2255. For the reasons set forth below, Cosey's Motion is DENIED.

BACKGROUND

On September 26, 2003, Cosey and co-defendant, Anthony Curtis, were charged in a two-count Superseding Indictment with conspiracy to possess with intent to distribute cocaine and cocaine base (crack) in violation of Title 21, U.S.C. §§ 846 and 841(b)(1)(A) and with possession of cocaine and more than 50 grams of a mixture and substance containing cocaine base (crack) in violation of Title 21, U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and Title 18, U.S.C. §2.

On February 12, 2004, Cosey entered into a Plea Agreement with the Government, whereby he pled guilty to Count 2 of the Superseding Indictment, Possession of Less than 50 Grams of Cocaine with Intent to Distribute. Count 1 of the Superseding Indictment was dismissed upon motion of the United States.

On May 27, 2004, this Court adopted the findings of the Pre-Sentence Report and sentenced Cosey to a term of imprisonment of 150 months, 6 years supervised release, no fine, and a $100 special assessment.

Cosey did not appeal his sentence.

On December 13, 2007, Cosey filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. In his petition, Cosey argued the Court improperly assessed his criminal history points and that he was denied effective assistance of counsel. On February 25, 2008, this Court re-characterized Cosey's motion as a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. The Government filed a Response to Cosey's § 2255 Motion on March 25, 2008. Cosey filed a traverse on June 4, 2008. As the issues are now fully briefed, this Order follows.

DISCUSSION

There are statutory time limits which govern whether a district court can entertain a Motion to Vacate, Set Aside or Correct Sentence. The present case is governed by 28 U.S.C. § 2255. The statute reads, in part:

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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