The opinion of the court was delivered by: Stengel, J.
Francisco Fabian is a federal prisoner incarcerated at the Federal Correctional Institution Satellite Camp in Beaver, West Virginia. He filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of counsel. Because the petition is clearly untimely, I did not request a response from the government.*fn1 Furthermore, as part of his guilty plea, Mr. Fabian waived his right to collaterally attack his conviction and sentence. For the reasons below, I will deny and dismiss the motion with prejudice.
On October 28, 2010, Mr. Fabian entered a guilty plea to Counts One through Five of the Superceding Indictment which charged him with conspiracy to distribute methamphetamine, distribution of methamphetamine (two counts), possession with the intent to distribute methamphetamine, and with using and carrying a firearm during and in relation to a drug trafficking offense. As part of the plea, the government and the defendant agreed that a sentence of 180 months' incarceration would be appropriate.
At a sentencing hearing on December 22, 2010, I determined that Mr. Fabian's Total Offense Level was 33 with a Criminal History Category of I, which yielded an initial sentencing guideline range of 135 to 168 months of incarceration. Because of the mandatory minimum sentence of five years required for Count Three, the final guideline range became 195 to 228 months of incarceration.
After a thorough consideration of all of the sentencing factors set forth in 18 U.S.C. § 3553(a), I sentenced Mr. Fabian to a total of 180 months' incarceration which included 120 months' incarceration on Counts One, Two, Four, and Five, to run concurrently with each other; and 60 months' incarceration on Count Three, to run consecutively to the 120 month sentence. At sentencing, the government moved to dismiss Count Six of the Superceding Indictment, a second firearm offense. Mr. Fabian did not appeal his conviction and sentence.
A federal prisoner in custody under sentence of a federal court challenging his sentence based on a violation of the U.S. Constitution or laws of the United States may move the court that imposed the sentence to vacate, set aside, or correct the sentence. See 28 U.S.C. § 2255(a). In a § 2255 motion, a federal prisoner may attack his sentence on any of the following grounds: (1) the judgment was rendered without jurisdiction; (2) the sentence imposed was not authorized by law or otherwise open to collateral attack; or (3) there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack. See 28 U.S.C. § 2255(b).
A petitioner is entitled to an evidentiary hearing on the merits of his claims unless it is clear from the record that he is not entitled to relief. The court must dismiss the motion "if it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." See Rule 4(b) of the Rules Governing Section 2255. A prisoner's pro se pleading is construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 32 (3d Cir. 2011).
Based on his § 2255 motion and the record of proceedings, it plainly appears that Mr. Fabian is not entitled to relief. Initially, I note that Mr. Fabian's § 2255 motion is untimely. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations period for § 2255 motions. See 28 U.S.C. § 2255(f). Section 2255(f) outlines four possible dates from when the one-year statute of limitations period begins to run:
(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 ...