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Swims v. United States

United States District Court, Northern District of Indiana, Hammond Division

November 18, 2014

DWAYNE SWIMS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent, No. 2:09-CR-233

OPINION AND ORDER

Joseph S. Van Bokkelen United States District Judge

Dwayne Swims, a federal prisoner, has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (DE 143). The question before the Court is whether it must hold an evidentiary hearing on his motion, and if not, whether Swims is entitled to any relief under § 2255.

A. Background

On June 7, 2011, Swims pleaded guilty, without the benefit of a plea agreement, to possession of a firearm as a felon and three counts of distributing crack cocaine. He was sentenced to the statutory minimum term of fifteen years under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), because he had three previous convictions for violent felonies. He appealed his sentence to the Court of Appeals for the Seventh Circuit. On February 28, 2013, the Seventh Circuit entered final judgment affirming his sentence (DE 142-2).

On June 18, 2014, one year, three months, and twenty-one days after the Seventh Circuit entered its final judgment, Swims filed this motion, alleging that his trial counsel was constitutionally ineffective for failing to subpoena restoration of rights letters or procure an affidavit regarding the restoration of his civil rights after two Illinois convictions that might have prevented two of his conviction from counting as predicate offenses for the purposes of imposing the fifteen-year mandatory minimum sentence under the ACCA. He also claims that both his trial and appellate counsel were ineffective because they failed to argue that, on the basis Seventh Circuit and Supreme Court precedent, his conviction under 720 Ill. Comp. Stat. 5/19-1 for second degree burglary could not be a predicate offense. The Government argues, among other things, that Swims’s motion is barred as untimely.

B. Legal Standards

Title 28 U.S.C. § 2255(b) provides that unless a § 2255 motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court must grant a hearing on the motion. A § 2255 petitioner is entitled to an evidentiary hearing if he alleges facts that, if proven would entitle him to relief. Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002).

Under § 2255(f), a one-year period of limitation applies to a § 2255 motion. The limitation period runs 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 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.

18 U.S.C. § 2255(f).

A federal conviction becomes final under § 2255(f)(1) with the expiration of the time within which to file a petition for a writ of certiorari. Clay v. United States, 537 U.S. 522, 525 (2003). Under Supreme Court Rule 13(1), a petition for a writ of certiorari to review a judgment must be filed within ninety days after entry of the judgment. Moreover, “[t]he time to file a petition for a writ of certiorari runs from the date of entry of the ...


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