The opinion of the court was delivered by: Jeanne E. Scott, District Judge
This matter is before the Court on Petitioner Ammeron Dawson's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (d/e 1) (Petition). On April 1, 2008, this Court accepted Dawson's open plea of guilty to distributing cocaine base (crack) in violation of 21 U.S.C. § 841 (a)(1) & (b)(1)(C). On August 11, 2008, the Court sentenced Dawson to 130 months imprisonment. United States v. Dawson, C. D. Ill. Case No. 08-30010, Minute Entry, dated August 11, 2008. Dawson now seeks habeas relief pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Government's request to dismiss Dawson's Petition as untimely is denied. The Court finds that an evidentiary hearing should be held to determine whether Dawson was deprived the effective assistance of counsel relating to the filing of a notice of appeal. Dawson's remaining claims lack merit and are dismissed.
Dawson pleaded guilty to distributing cocaine base (crack) in violation of 21 U.S.C. §§ 841 (a)(1) & (b)(1)(C). Prior to the change of plea hearing, the Government filed a Notice of Prior Conviction, pursuant to 21 U.S.C. § 851. United States v. Dawson, 08-30010, Notice of Prior Conviction (d/e 8). Thus, Dawson faced a statutory maximum sentence of thirty years imprisonment pursuant to 21 U.S.C. § 841(b)(1)(C).
Dawson's Indictment did not specify how much cocaine base (crack) he allegedly distributed. United States v. Dawson, 08-30010, Indictment (d/e 5). The Pre-Sentence Report (PSR) recommended that Dawson be held accountable for a total of 120.57 grams of cocaine base (crack), based on statements made to law enforcement officials by Jermaine Countryman. United States v. Dawson, 08-30010, PSR (d/e 18), ¶ 19. Defendant did not object to the PSR, and the Court adopted its findings. United States v. Dawson, 08-30010, Minute Entry, dated August 11, 2008. As previously noted, the Court sentenced Dawson to 130 months imprisonment. Id.
Judgment was entered on August 12, 2008. United States v. Dawson, 08-30010, Judgment (d/e 15). No notice of appeal was filed. In August 2009, Dawson filed the pending Petition.
The Government asserts that Dawson's Petition is untimely. Under 28 U.S.C. § 2255(f), a one-year statute of limitations applies to petitions for § 2255 habeas relief. A petitioner must file his petition within one year 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.
28 U.S.C. § 2255(f). The latest of these dates governs.
Because no notice of appeal was filed, Dawson's one-year habeas period began to run after the ten-day period for filing a direct appeal had expired. See Burt v. United States, 2009 WL 3245387, *1 (E.D. Wis. October 7, 2009); Fed. R. App. P. 4(b) (West 2008). In computing the tenday period, applicable federal rules require the exclusion of intermediate Saturdays and Sundays. Fed. R. App. P. 26(a) (West 2008). Although Dawson's Petition was not docketed until August 27, 2009, it is deemed filed on the date he delivered it to prison authorities for forwarding to this Court. See Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999). Dawson's instant Petition contains a sworn certificate of service indicating that Dawson delivered it to prison authorities on August 20, 2009. Petition, p. 9. The Government does not challenge the date on the certificate of service and has presented no evidence to contradict it. Therefore, the only evidence in the ...