The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
Before the Court is a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, filed by Petitioner Harry Edwin Miles on October 14, 2008 (Doc. 1).
On November 3, 2008, after conducting a preliminary review of Miles's Motion, pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court held that only one of ten grounds raised by Miles (Speedy Trial Act claim) had the potential of merit. Accordingly, the Court ordered the Government to respond only with reference to that single ground and to address the Motion's timeliness. On December 17, 2008, the Government moved to dismiss Miles's Motion to Vacate as untimely. On June 5, 2009, Miles filed a "First Amended Petition for Relief From Judgment Pursuant to F.R.Civ.P 60(b)" -- a document in which Miles rambles about various issues not relevant to the timeliness of his Motion to Vacate.
Because Miles's Motion to Vacate is untimely, the Government's Motion to Dismiss (Doc. 4) is GRANTED.
On June 6, 2006, following a jury trial, this Court entered a judgment convicting Miles of two criminal counts: (1) Conspiracy to Distribute Cocaine and Methamphetamine, in violation of 21 U.S.C. § 846 and (2) Possession With Intent to Distribute Cocaine and Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). On each count, the Court imposed a sentence of 360 months' imprisonment and a five-year term of supervised release; the sentences of imprisonment were to run concurrently, as were the terms of supervised release.*fn1
Subsequently, Miles appealed to the United States Court of Appeals for the Seventh Circuit. In a July 3, 2007 decision, the Court of Appeals affirmed Miles's conviction and sentence. United States v. Miles, 244 Fed. Appx. 31 (7th Cir. 2007). Miles did not seek a writ of certiorari from the United States Supreme Court on direct appeal. On October 14, 2008, Miles filed the instant Motion to Vacate under 28 U.S.C § 2255.
Title 28 U.S.C. § 2255 provides that a sentence may be vacated, set aside, or corrected: upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .
Relief under § 2255 is "an extraordinary remedy to one who already has had an opportunity for full process." Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006).
A one-year period of limitation applies to motions filed under § 2255. The limitation period runs from the latest of the following dates:
(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 ...