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United States v. Pete

United States District Court, W.D. Louisiana, Lake Charles Division

March 25, 2018

UNITED STATES OF AMERICA
v.
ARDWIN FITZGERALD PETE

          MINALDI JUDGE.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before 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. § 636.

         I.

         Background

         Pursuant 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. Doc. 202.

         Pete 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 concurrently. Id.

         II.

         Law and Analysis

         To the 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 clearly untimely.[1]

         To the 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.

         III.

         Conclusion

         For the 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 ...


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