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United States v. Smith

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


April 20, 2009

UNITED STATES OF AMERICA
v.
TYRONE SMITH A/K/A "MANNY"

The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

MEMORANDUM

Before the court is a motion filed by Defendant pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct a sentence. On November 24, 2003, Defendant was sentenced by this court. A notice of appeal was filed on December 15, 2003. On May 6, 2005, the case was remanded for a resentencing which was accomplished on July 28, 2005. On August 2, 2005, Defendant filed a notice of appeal as to the resentencing judgment. The Third Circuit Court of Appeals affirmed the judgment of this court on November 1, 2005. A petition for a writ of certiorari was denied by the United States Supreme Court on December 12, 2005. The court of appeals issued its mandate on January 4, 2008. The instant petition was filed on April 16, 2009.

Title 28 U.S.C. § 2255 provides for a one (1) year period of limitation to file a motion under this section. The limitation period in Defendant's case begins to run from the date on which the judgment of conviction becomes final. The judgment became final on January 4, 2008. The instant motion is untimely and will be dismissed.

ORDER

AND NOW, this 20th day of April, 2009, IT IS HEREBY ORDERED THAT the motion filed pursuant to 28 U.S.C. § 2255 is DISMISSED. This court declines to issue a certificate of appealability. The Clerk of Court shall close the file.

20090420

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