United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION & ORDER
JOAN B. GOTTSCHALL, District Judge.
Petitioner Curtis Diggs moves the court to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Diggs challenges his conviction and sentence on two grounds. He first argues that his counsel was ineffective during plea negotiations for failing "to explain the facts, and law relevant to those facts, with respect to Movant's criminal case." Second, he argues that his counsel was ineffective at sentencing for failing to object to a prior conviction that was used to classify him as a career offender. The court concludes that Diggs's motion is time-barred and denies the motion.
On November 20, 2002, a grand jury indicted Diggs for: (1) conspiracy to knowingly and intentionally possess with intent to distribute substances containing cocaine base and mixtures and substances containing cocaine in violation of 21 U.S.C. § 841(a), and (2) knowingly and intentionally attempting to possess with intent to distribute mixtures and substances containing cocaine in violation of 21 U.S.C. § 846. On August 14, 2003, Diggs pled guilty to the second charge pursuant to a plea agreement. Diggs moved to withdraw his guilty plea on January 12, 2009, and the court denied his motion on March 16, 2009. On April 22, 2009, the court sentenced Diggs to imprisonment for 240 months and dismissed the other count in the indictment, and entered judgment on April 24, 2009. Diggs, having waived his appellate rights as part of his plea agreement, did not file a direct appeal.
Now before the court is Diggs's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, which Diggs filed on December 23, 2013. The government moves to dismiss Diggs's motion as time-barred under 28 U.S.C. § 2255(f).
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a person convicted of a federal crime may move to vacate, set aside, or correct his sentence "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." 28 U.S.C. § 2255(a). If the petition is successful, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b). In deciding a § 2255 motion, the court views the evidence "in a light most favorable to the government." United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000).
A one-year period of limitation applies to a motion under Section 2255. Id. § 2255(f). That period runs 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.