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United States v. Harper

United States District Court, W.D. Arkansas, Fort Smith Division

June 4, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
DAVID HARPER DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed May 29, 2018. (ECF No. 36). The United States has not been directed to file a response, and none is necessary.

         I. Background

         On January 27, 2016, Defendant, David Harper (“Harper”), was named in a one count Indictment charging that he knowingly crossed a State line with the intent to engage in a sexual act with a person who had not attained the age of 12 years of age and attempted to do such, all in violation of 18 U.S.C. § 2241(c). (ECF No. 4). Harper appeared for arraignment on January 27, 2016, at which time he entered a plea of not guilty to the Indictment. (ECF No. 8). The Court appointed James B. Pierce (“AFPD Pierce”), Assistant Federal Public Defender, to represent Harper. (ECF Nos. 8, 10). Harper waived the issue of detention, and he was ordered detained and remanded to the custody of the United States Marshal Service. (ECF Nos. 8, 11).

         On June 29, 2016, Harper appeared with counsel before the Hon. P. K. Holmes, III, Chief United States District Judge for the Western District of Arkansas, for a change of plea hearing. (ECF No. 19). Pursuant to a written Plea Agreement, Harper pleaded guilty to the one count Indictment charging him with knowingly crossing a State line with the intent to engage in a sexual act with a person who had not attained the age of 12 years of age and attempting to do so, all in violation of 18 U.S.C. § 2241(c). (ECF Nos. 19, 20). The Court accepted Harper's guilty plea and ordered a presentence investigation. (ECF No. 19).

         Harper appeared for sentencing on November 17, 2016. (ECF No. 30). The Court imposed the statutorily required minimum sentence of 360 months imprisonment, five years supervised release, no fine, and a $100.00 special assessment. (Id.). Judgment was entered by the Court on November 18, 2016. (ECF No. 32). Harper did not pursue a direct appeal from the Judgment.

         On March 2, 2018, Harper filed Defendant's Motion for Extension of Time to File His Motion to Vacate, Set Aside, or Correct Sentence, Pursuant to 28 U.S.C. § 2255. (ECF No. 34). An Order denying the motion was entered on March 5, 2018. (ECF No. 35).

         Despite the Court's Order denying an extension of time to file a motion pursuant to 28 U.S.C. § 2255, on May 29, 2018 Harper filed his pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “motion”). (ECF No. 36).

         II. Discussion

         “A prisoner in custody under sentence . . . claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, 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.” 28 U.S.C. § 2255(b). A thorough review of Harper's motion and the files and records of this case conclusively shows that Harper's motion is untimely, and the denial and dismissal of his motion without an evidentiary hearing is recommended.

         Timeliness

         A one year period of limitation applies to motions under 28 U.S.C. § 2255. This 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 ...

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