The opinion of the court was delivered by: Gilbert, District Judge
This matter is before the Court on Petitioner Charles Derrick Keller's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence. This motion was filed by Keller, pro se, and the Government has not filed written responses to this motion. For the reasons set forth below, the motion is denied.
Pursuant to a Plea Agreement and Stipulation of Fact, Keller entered a plea of guilty to one count of being a felon in possession of a firearm. On January 26, 2007, this Court imposed a sentence of 180 months incarceration, five years supervised release, a special assessment of $100 and a fine of $100. Keller did not appeal, and he filed this action on May 12, 2009.
Prior to the passage of the Antiterrorism and Effective Death Penalty Act, Pub. L 104-132, 110 Stat. 1214 ("the Act"), a motion under § 2255 could be brought at any time. However, since the Act was passed on April 24, 1996, § 2255 now provides, in pertinent 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 the exercise of due diligence.
In the instant case, Keller was sentenced on January 26, 2007. He did not file notice of appeal, which had to be filed within ten days of entry of judgment. FED.R.APP.P. 4(b)(1). Therefore, for purposes of § 2255, Keller's conviction became final on February 9, 2007, when time for filing his appeal had expired, and his § 2255 motion should have been filed by February 9, 2008. Keller filed the instant motion on May 11, 2009. Thus, his judgment of conviction was final for more than two years prior to the filing of his motion under § 2255, and he filed this ...