United States District Court, Western District of Arkansas, El Dorado Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
HON. BARRY A. BRYANT, U.S. MAGISTRATE JUDGE.
Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 51) filed herein by ERNEST LEWIS, (hereinafter referred to as “Lewis”) an inmate confined in the Beaumont Medium Federal Correctional Institution, Beaumont, Texas. The United States of America (hereinafter referred to as the “Government”) has responded to the Motion. ECF No. 53. The Motion was referred for findings of fact, conclusions of law and recommendations for the disposition of the case, for the reasons set out below I find this Motion should be DENIED.
I. Procedural Background
Lewis was charged in a two-count Indictment, each count alleging Lewis distributed more than five grams of crack cocaine. ECF No. 1. A Superceding Indictment was later filed alleging five-counts of criminal conduct. In addition to the original two-counts, it added allegations of conspiracy to distribute more than 50 grams of crack cocaine, maintaining a drug premises, and being a prior convicted felon in possession of a firearm. ECF No. 21.
On November 9, 2010, Lewis entered a plea of guilty to Count 2, distribution of more than five grams of crack cocaine. ECF No. 32. As part of a plea agreement, Lewis agreed to waive his right to collaterally attack, pursuant to 28 U.S.C. § 2255, any sentence imposed and his right to seek a modification of sentence pursuant to 28 U.S.C. § 3582. ECF No. 33. United States District Judge Harry F. Barnes ordered a Pre-sentence Report (PSR).
On May 5, 2011, Lewis was sentenced by Judge Barnes to 97 months imprisonment, 4 years supervised release, and $100 special assessment. ECF No. 38. This sentence was in conformity with the parties plea agreement. On May 11, 2011, Judge Barnes entered an Amended Judgment imposing the same sentence, but giving Lewis credit served for federal time already served. ECF No. 40.
On July 18, 2012, Lewis filed a pro se Motion for Sentence Reduction based on post sentencing rehabilitation. ECF No. 41. The Court construed this motion as one for retroactive application of the Sentencing Guidelines for Crack Cocaine Offenses and directed the United States Probation Office to prepare an Addendum to the PSR. ECF No. 43. The Court also appointed counsel to represent Lewis. ECF No. 44. On November 28, 2012, Judge Barnes denied the Motion for Sentence Reduction. ECF No. 46.
II. Instant Petition:
Lewis filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §2255 on June 24, 2013. ECF No. 51. Lewis claims he should be re-sentenced under the Fair Sentencing Act of 2010 (FSA) in light of Dorsey v. United States, ___ U.S.___, 132 S.Ct. 2321 (2012) and Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). The Court directed the Government to file a response and the Government filed its Response on November 26, 2013. ECF No. 53. In its Response, the Government asserts Lewis waived his right to collateral review and further, he was given the benefit of the FSA at sentencing.
a. Statute of Limitations:
Neither party addressed the timeless of the instant Motion. On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”) was signed into law. As amended by the AEDPA, 28 U.S.C. § 2255 imposes a one-year statute of limitations on § 2255 motions, stating in pertinent part:
(f) 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 ...