The opinion of the court was delivered by: (chief Judge Vanaskie)
THE BACKGROUND OF THE ORDER IS AS FOLLOWS:
On February 27, 2003, Defendant Noe Perez-Diaz pled guilty pursuant to a written plea agreement to conspiracy to distribute and possess with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 846. On February 18, 2004, Mr. Perez-Diaz was sentenced to a prison term of 51 months.*fn1 (Dkt. Entry 24.) This Court also imposed a five (5) year period of supervised release and a special assessment of $100. Id. Mr. Perez-Diaz did not appeal his sentence.
On September 30, 2005, the Defendant moved to vacate his sentence under 28 U.S.C. § 2255. (Dkt. Entry 27.) Although the § 2255 motion was docketed on September 30, 2005, the motion itself bore a signature date of January 20, 2005. (See id. at 14.) Thus, it was not certain when the Defendant mailed his motion to this Court.*fn2
In his § 2255 motion, Mr. Perez-Diaz asserted three main arguments in challenging his sentence. First, Mr. Perez-Diaz asserted his sentence was imposed in violation of his Sixth Amendment rights recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000). (Dkt. Entry 27, at 3-9.) Second, Mr. Perez-Diaz argued that he was denied effective assistance of counsel during sentencing. (Id. at 9-11.) Finally, the Defendant claimed his counsel disregarded his directive to file a notice of appeal. (Id. at 11-12.) In the Memorandum and Order of January 26, 2006, this Court concluded that the first two arguments were without merit and dismissed them. (Dkt. Entry 30.) However, the third argument could not be summarily resolved, and this Court ordered the Government to respond to the Defendant's assertion that his counsel disregarded a directive to file a notice of appeal. (Id.)
On February 3, 2006, the Government filed a motion to dismiss the Defendant's § 2255 motion. (Dkt. Entry 32.) In its motion, the Government argued that the Defendant's § 2255 motion was not filed within the one-year statute of limitations for filing § 2255 motions. Specifically, the Government asserted the Defendant had backdated his affidavit of service to January 20, 2005, in an effort to circumvent the one-year limitations period. (See id. at 2, ¶ 3.) In support, the Government pointed out that the Defendant's § 2255 motion cited Ballard v. United States, 400 F.3d 404 (6th Cir. 2005), which was decided on March 10, 2005, approximately one-and-one-half months after January 20, 2005. (Id. See also Dkt. Entry 27, at 5.) Accordingly, concluding that it was evident that Mr. Perez-Diaz's § 2255 motion was filed outside the one-year limitations period, the Government requested this Court dismiss the Defendant's § 2255 motion. Significantly, Mr. Perez-Diaz has not replied to the Government's motion to dismiss.
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 105, 110 Stat. 1214, 1220, imposed a one-year limitations period on filing § 2255 motions. As amended, § 2255 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.
Since paragraphs (2) through (4) of the limitations provision are not implicated, the dispositive matter here concerns the "date upon which the judgment of conviction [became] final." Unless a federal defendant files a notice of appeal, the defendant's conviction becomes final upon the expiration of the ten-day period after the entry of judgment. See Fed. R. App. P. 4(b)(1)(A)(i). Cf. Kapral v. United States, 166 F.3d 565, 572-73 (3d Cir. 1999) (for the purposes of § 2255, if a defendant does not petition for a ...