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United States v. Theus

United States District Court, W.D. Louisiana, Shreveport Division

January 17, 2017

UNITED STATES OF AMERICA
v.
TROY L. THEUS CRIMINAL ACTION No. 09-00246-01

          HORNSBY MAGISTRATE JUDGE

          MEMORANDUM RULING

          S. MAURICE HICKS, JR UNITED STATES DISTRICT JUDGE

         Before this Court is a Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Record Document 111) filed by Petitioner Troy L. Theus (“Theus”). Theus seeks an order from the Court vacating or reducing his sentence by requesting that his federal term of sentence be allowed to run concurrent to a state court sentence. For the reasons set forth below, Theus' motion is DENIED.

         BACKGROUND

         On January 6, 2010, Theus pleaded guilty to Count 1 of a nine-count Indictment in which he was charged as a felon in possession of a firearm, in violation of Title 18, United States Code, § 922(g)(1). See Record Documents 1, 59, 60 and 71. Theus was sentenced to 50 months of imprisonment on April 14, 2010. See Record Document 71. The Court rendered judgment on April 26, 2010. See Record Document 72.

         Theus filed a Notice of Appeal appealing his sentence to the Fifth Circuit Court of Appeals on April 29, 2010. See Record Document 73. However, the Fifth Circuit granted an unopposed motion to dismiss the appeal on December 16, 2010. See Record Document 95. On June 20, 2011, Theus filed a motion entitled “Motion to Transfer Defendant into Federal Custody, ” a motion that this Court denied on June 29, 2011. See Record Documents 106 and 107.

         Now before the Court is Theus' Motion to Vacate under 28 U.S.C. § 2255, Dated: October 7, 2013, and received by the Court on October 9, 2013. See Record Document 111. In this motion, Theus is seeking to have his federal sentence run concurrent to a state court sentence. This Court previously addressed the issue stated in this § 2255 motion in its denial of Theus' Motion to Transfer Defendant into Federal Custody on June 29, 2011. See Record Documents 106 and 107. Before considering the merits of Theus' § 2255 motion, this Court must decide the issue of timeliness, as the Government argues that Theus did not file his motion in accordance with the applicable statute of limitations. See Record Document 120.

         LAW AND ANALYSIS

         To review the merits of a motion under § 2255, it must be filed within the statute of limitations. Title 28, United States Code, § 2255(f) provides:

A 1-year period of limitation shall apply to a motion under this section. 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 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 ...

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