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Messer v. United States

United States District Court, D. Utah

April 11, 2018

TERRY ARNOLD MESSER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

          Ted Stewart, United States District Judge

         This matter is before the Court on Petitioner Terry Arnold Messer's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below, the Court will deny the Motion and dismiss this case.

         I. BACKGROUND

         Petitioner was charged on February 28, 2013, with one count of distribution of methamphetamine. A Superseding Indictment was filed on April 24, 2013. Petitioner pleaded guilty on August 15, 2013, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).

         Prior to sentencing, a Presentence Report was prepared. The Presentence Report determined that Petitioner qualified as a career offender based on three prior convictions: (1) a 1996 conviction for distribution of a controlled substance; (2) a 2000 conviction for possession of a controlled substance within a correctional facility; and (3) a 2001 conviction for operation of a clandestine laboratory.

         On November 7, 2013, the Court accepted the plea agreement and, in accordance with that agreement, imposed a sentence of 240 months. Judgment was entered on November 13, 2013.

         Petitioner did not file a direct appeal. However, Petitioner filed a Petition for Writ of Error Coram Nobis on June 18, 2014. Petitioner then filed a § 2255 motion on June 19, 2014, and requested the Court construe his Petition for Writ of Error Coram Nobis as a § 2255 motion.

         Petitioner later sought dismissal of his § 2255 Motion. The Court granted that request and dismissed Petitioner's original § 2255 Motion without prejudice on October 21, 2014.

         Petitioner has now filed the instant Motion, again requesting relief under § 2255. Petitioner's Motion is dated March 20, 2018, and was received by the Court on April 3, 2018. Petitioner asserts that his counsel was ineffective during the pretrial, plea, sentencing, and direct appeal process. In particular, Petitioner takes issue with counsel's failure to object to Petitioner's classification as a career offender and argues that he is actually innocent of the 2001 conviction for operation of a clandestine laboratory.

         II. DISCUSSION

         In general, a prisoner may not file a § 2255 motion more than one year after his conviction becomes final.[1] 28 U.S.C. § 2255(f) provides, 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 ...

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