The opinion of the court was delivered by: Hon. Joseph H. Rodriguez
This matter is presently before the Court on an application by Petitioner Charles Bracciodieta, who requests that the Court vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The Government now moves to dismiss Mr. Bracciodieta's petition. The Court has considered the submissions of the parties and for the following reasons will dismiss Petitioner's ineffective assistance of counsel claim without an evidentiary hearing.
On February 14, 1997, Petitioner pleaded guilty to three counts of bank robbery in violation of 18 U.S.C. § 2113(a). On February 23, 1998, this Court sentenced him to three terms of 109 months imprisonment for each count, to run concurrently and to be followed by a three year period of supervised release. Following his release from federal prison in 2005 and during his term of supervised release, Petitioner committed two additional bank robberies. These new offenses were assigned to the Honorable Joseph E. Irenas, United States District Court Judge.
Petitioner plead guilty to two violations of 18 U.S.C. § 2113(a) on September 7, 2006 before Judge Irenas. Judge Irenas sentenced Petitioner to a term of 127 months imprisonment on January 10, 2007. Then, on January 24, 2007, this Court sentenced Petitioner to a term of 24 months imprisonment for each violation of his supervised release, which was to run consecutively to any previous state or federal sentence, including the sentence imposed by Judge Irenas. Petitioner appealed both the sentence imposed by this Court and the sentence imposed by Judge Irenas. Those appeals were consolidated and the Third Circuit affirmed the judgments of sentence.
Petitioner has filed two separate actions seeking collateral post conviction relief pursuant to 28 U.S.C. § 2255. In addition to the present action, in which Petitioner asserts only that his counsel provided ineffective assistance, another action was pending before Judge Irenas.*fn2 The Government filed an answer and a motion to dismiss on January 18, 2010. The Government's singular filing addresses both the present action and the case pending before Judge Irenas.
A. The Government's Motion to Dismiss
The Government moves to dismiss Petitioner's application on strictly procedural grounds. The Government first argues that Petitioner's claims are time-barred under the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub L. 104-132, Tit.I, 110 Stat. 1217 ("AEDPA"). Alternatively, the Government contends that the Third Circuit Court of Appeals already rejected on direct appeal the arguments Petitioner advances in the present action. Both arguments fail.*fn3
First, Petitioner' s application is timely. Under 28 U.S.C. 2255(f), a petitioner seeking relief must file a motion within a one year limitation period that begins to run from the latest occurrence of the following four possible dates:
(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 ...