Foster v. United States of America

Filing 8

ORDER denying section 2255 motion (Doc. No. 1) and dismissing case with prejudice. The Clerk of the Court shall enter judgment accordingly, close this case, file a certified copy of this Order and judgment in criminal case number 6:09-cr-39-Orl-19DAB, and terminate the section 2255 motion (Doc. No. 100) pending in the criminal case. A Certificate of Appealability is denied in this case. Signed by Senior Judge Patricia C. Fawsett on 8/3/2011. (AJM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

RAYMOND STEVE FOSTER,
Petitioner,
v.

CASE NO. 6:11-cv-74-Orl-19DAB
(6:09-cr-39-Orl-19DAB)

UNITED STATES OF AMERICA,
Respondent.
/
ORDER
This case involves a motion to vacate, set aside, or correct an illegal sentence
pursuant to 28 U.S.C. § 2255 (Doc. No. 1) filed by Raymond Steve Foster. The Government
filed a response (Doc. No. 6) to the section 2255 motion in compliance with this Court's
instructions and with the Rules Governing Section 2255 Proceedings for the United States
District Courts. Petitioner was given the opportunity to file a reply, but he failed to do so.
Procedural History
Petitioner and another individual were charged in a four-count indictment with the
commission of various crimes (Criminal Case No. 6:09-cr-39-Orl-19DAB, Doc. No. 1, filed
March 25, 2009).1 Petitioner was charged in counts two and four. Petitioner subsequently
entered guilty pleas as to both counts without a plea agreement. United States Magistrate
Judge David A. Baker held a hearing on the pleas and entered a Report and
1

Criminal Case No. 6:09-cr-39-Orl-31DAB will be referred to as “Criminal Case.”

Recommendation Concerning Plea of Guilty in which he recommended that the pleas be
accepted and that Petitioner be adjudged guilty and have sentence imposed accordingly.
See Criminal Case Doc. No. 43. On October 6, 2009, the Court entered a Judgment In A
Criminal Case (Criminal Case Doc. No. 82) in which Petitioner was adjudicated guilty of
the crimes and sentenced to imprisonment for a total term of 61 months. Petitioner did not
appeal his conviction or sentence.
Petitioner’s Section 2255 Motion is Untimely
A motion under section 2255 must be filed within one-year from the latest of the
following:
(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.

28 U.S.C. § 2255. Petitioner’s motion is subject to dismissal because it was not timely filed
under the one-year period of limitation set forth in section 2255.
As already noted, the judgment of conviction in this case was entered by the Court
on October 6, 2009. Because no appeal was filed, the judgment of conviction became final
10 days after the entry of judgment by the Court. See Mederos v. United States, 218 F.3d
1252, 1253 (11th Cir. 2000) (holding that a conviction that is not appealed becomes final

when the time allotted for filing an appeal expires). Thus, Petitioner’s conviction became
final on October 16, 2009, and Petitioner had until October 18, 2010, to file a section 2255
motion in this case.2
Although Petitioner’s initial section 2255 motion was file-stamped by the Clerk’s
office on January 19, 2011, under the “mailbox rule,” it would be deemed filed on
December 29, 2010, the date when the motion was signed and presumably delivered to the
prison authorities for mailing. See Adams v. United States, 173 F.3d 1339, 1341 (11th Cir.
1999). However, because Petitioner’s initial section 2255 motion was not filed by October
18, 2010, it is time-barred under section 2255 and must be denied.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

The motion to vacate, set aside, or correct an illegal sentence pursuant to 28

U.S.C. § 2255 (Doc. No. 1, filed January 19, 2011) filed by Raymond Steve Foster is
DENIED, and this case is DISMISSED with prejudice.
2.

The Clerk of the Court shall enter judgment accordingly and is directed to

close this case. A certified copy of this Order and the judgment shall also be filed in
criminal case number 6:09-cr-39-Orl-19DAB.
3.

The Clerk of the Court is directed to terminate the motion to vacate, set aside,

or correct an illegal sentence pursuant to 28 U.S.C. § 2255 (Criminal Case Doc. No.100, filed
January 19, 2011) pending in case number 6:09-cr-39-Orl-19DAB.
4.

This Court should grant an application for certificate of appealability only if

2

The Court notes that October 16, 2010, fell on a Saturday.
3

the Petitioner makes “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a
constitutional right.3 Accordingly, a Certificate of Appealability is DENIED in this case.
DONE AND ORDERED in Chambers at Orlando, Florida, this _3rd____ day of
August, 2011.

Copies to:
OrlP-2 8/3
Raymond Steve Foster
3

Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United

States District Courts,
The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant. Before entering the final order,
the court may direct the parties to submit arguments on whether a certificate
should issue. If the court issues a certificate, the court must state the specific
issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If
the court denies a certificate, a party may not appeal the denial but may seek
a certificate from the court of appeals under Federal Rule of Appellate
Procedure 22. A motion to reconsider a denial does not extend the time to
appeal.
4

Counsel of Record

5