United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court is a motion [doc. 233] filed by defendant Ardwin
Fitzgerald Pete, requesting that his state and federal
sentences be ordered to run concurrently. This motion was
referred to the undersigned for review, report, and
recommendation in accordance with the provisions of 28 U.S.C.
to a plea agreement, Pete was convicted in this court of one
count of conspiracy to distribute narcotics (cocaine and
cocaine base), a violation of 21 U.S.C. § 846. Docs.
108, 109; see doc. 1 (indictment). On March 3, 2010,
he was sentenced by Judge Patricia Minaldi to a 150 month
term of imprisonment. Docs. 143, 149. He filed a pro se
motion to reduce sentence under 18 U.S.C. § 3582, based
on subsequent amendments to the United States Sentencing
Guidelines. Doc. 198. The court granted the motion on January
3, 2012, and reduced his term of imprisonment to 120 months.
has now filed the instant motion, in the form of a letter to
Judge Minaldi, received by this court on January 23, 2017.
Doc. 233. Here he states that he has been a model prisoner
and notes that he is also subject to a five-year state
sentence, which was not mentioned in the judgments in this
matter. Id. He requests clarification on whether his
federal sentence is meant to run concurrent with the state
sentence, and indicates his preference that the sentences run
extent that Pete's motion could be construed as a motion
to vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255, it is untimely. Such motions are subject to a
one-year limitations period, running from the latest of the
following dates: (1) when the judgment became final; (2) when
a government-created impediment to filing the motion was
removed; (3) when the United States Supreme Court initially
recognized and made retroactively applicable the legal
predicate for the motion; or (4) when the petitioner could
have discovered, through due diligence, the factual predicate
for the motion. 28 U.S.C. § 2255(f). A judgment becomes
final, under this section, when the period for seeking direct
review of a conviction or sentence has expired. Clay v.
United States, 123 S.Ct. 1072, 1075-76 (2003). Pete
provides no basis for running the limitations period from any
later date under § 2255(f). His conviction and sentence
became final on March 17, 2010, the last day on which he
could have filed a notice of appeal to the Fifth Circuit.
See Fed. R. App. 4(b)(1)(A). Accordingly, the
one-year limitations period began to run on March 18, 2010,
and expired on March 17, 2011. The instant motion, filed
nearly six years after the expiration of that period, is
extent that Pete intended this motion as a request for
sentencing credit/challenge to the execution of his sentence
under 28 U.S.C. § 2241, this court does not have
jurisdiction over such a petition. The district of
incarceration has exclusive jurisdiction over a
defendant's § 2241 petition. Lee v. Wetzel,
244 F.3d 370, 373-74 (5th Cir. 2001). At the time he
submitted the instant letter/motion, Pete was incarcerated in
Yankton, South Dakota. See doc. 233, att. 1.
Accordingly, if he wishes to pursue relief under 28 U.S.C.
§ 2241, he must do so in the United States District
Court for the District of South Dakota.
reasons set forth above, IT IS RECOMMENDED
that the instant motion be DENIED as
time-barred to the extent it seeks relief under 28 U.S.C.
§ 2255 and DISMISSED WITHOUT PREJUDICE
for lack of ...