DAVID STEWART CERCONE, District Judge.
On September 21, 2010, Robert Duane Bledsoe ("Petitioner") filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside or correct his sentence. For the reasons set forth below, the motion will be denied as untimely.
On December 6, 2005, an indictment was returned charging petitioner with two counts: 1) conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin and 2) possession with intent to distribute heroin. On February 27, 2007, petitioner pled guilty to count one and count two was dismissed after imposition of sentence.
Petitioner's presentence report categorized him as a career offender. Petitioner's previous conviction for reckless endangerment contributed to this classification. Because petitioner was found to be a career offender, his offense level was adjusted from 23 to 31 and his criminal history level was raised from IV to VI. Accordingly, his advisory guideline sentencing range was 188 to 235 months. On June 11, 2007, petitioner was sentenced to 100 months incarceration. Neither petitioner nor his counsel filed an appeal from the sentence.
On September 21, 2010, petitioner filed the instant motion and amended in on April 26, 2011. In his original motion petitioner argues that following the Court's decision in Begay, the Third Circuit, on July 14, 2010, in United States v. Lee , 612 F.3d 170 (3d Cir. 2010), determined that reckless or negligent crimes do not fit within the definition of a "crime of violence." Petitioner then posits that the Third Circuit's opinion should be the benchmark from which to measure the timeliness of his motion because it closed the question, in petitioner's favor, as to whether he should have been classified as a career offender. In his amendment he further contends that 1) counsel was ineffective and 2) that the sentenced he received demonstrated that the government breached the plea agreement.
The government maintains that petitioner is barred by the one year statute of limitations. In support it argues that Begay and Chambers created the rule that reckless conduct is not sufficient to satisfy the guideline definition of a crime of violence. The government contends that Lee is inapposite to the timeliness of petitioner's motion as it merely applied Supreme Court precedent. As a result, the statute of limitations began to run when the Supreme Court decided Begay and then Chambers. The government also argues that 1) petitioner waived his right to file a Section 2255 motion, 2) the government did not breach the plea agreement and 3) an evidentiary hearing would be needed to determine if counsel was ineffective.
Petitioner's argument pertaining to the limitations period is misplaced and his motion is untimely. A one year statute of limitations applies to motions under section 2255. "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 the 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."
28 USC § 2255(f)(1-4).
A defendant's judgment of conviction becomes final on one of two dates. Kapral v. U.S. , 166 F.3d 565 (3d Cir. 1999). If the defendant files an appeal or a petition for certiorari, his judgment becomes final when the appeal/petition is either granted and adjudicated or denied. 166 F.3d at 570. If the defendant does not file an appeal/petition for certiorari, his judgment becomes final when the period for doing so expires. Id.
Here, petitioner was sentenced on June 11, 2007. He had fourteen days to appeal and failed to do so. Thus, petitioner's judgment became final on June 26, 2007, and under 28 USC § 2255(f)(1) he had until June 26, 2008, to file his motion. Petitioner's ...