The opinion of the court was delivered by: Karen E. Schreier Chief Judge
MEMORANDUM OPINION AND ODER
Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. Upon consideration of the record, the court concludes that the petition should be denied.
On February 13, 2006, law enforcement received information of drug activity occurring at the home of Steve Buchanan. The caller, later identified as Debra Lemonds, relayed that Buchanan offered methamphetamine to her and that she had seen paraphernalia associated with the use and manufacturing of methamphetamine. Based upon that information, law enforcement contacted Buchanan. After a brief conversation, Buchanan refused to allow agents to search his home without a warrant. Law enforcement then made contact with a confidential informant, later identified as Kyla Shultz. Shultz told law enforcement that Buchanan was manufacturing methamphetamine and implicated herself as well. At the request of law enforcement, Shultz made a Petitioner, telephone call to Buchanan that was recorded. During that telephone call, Buchanan made several statements that were somewhat incriminating.
Based upon the information provided by Lemonds and Shultz, the telephone call between Shultz and Buchanan, and the contact between Buchanan and law enforcement, law enforcement sought and received a search warrant for Buchanan's residence. While law enforcement was preparing the application for the search warrant, Buchanan was detained so as to protect any evidence from being destroyed. During this detention, Buchanan requested an opportunity to speak with his counsel. Counsel, however, was not contacted. Later, during the execution of the search warrant, Buchanan made several statements to law enforcement. A number of items were recovered during the execution of the search warrant, including a foiler, a Pyrex measuring cup, rubber gloves, and tubing.
Buchanan was charged by indictment on November 20, 2007. The indictment charged Buchanan with manufacturing, or attempting to manufacture, methamphetamine on or about February 2006. Buchanan was appointed counsel to represent him at all stages of the criminal proceeding.
In defense of his client, counsel filed a motion to suppress statements made by Buchanan after he requested the assistance of counsel. Counsel also moved to suppress any evidence obtained as a result of the search warrant arguing that the affidavit in support omitted material facts and contained false information. After an evidentiary hearing, the magistrate judge recommended that the motion to suppress the statements made by Buchanan be granted while the motion to suppress evidence procured based upon the search warrant be denied. The district court adopted the magistrate judge's recommendation.
A jury trial was subsequently commenced on July 8, 2008. At the close of evidence, defense counsel moved for a judgment of acquittal. The court denied the motion and the jury proceeded to deliberate the matter. On July 9, 2008, the jury returned a verdict of guilty on the charge of attempting to manufacture methamphetamine.
A sentencing hearing was held on October 22, 2008. The court sentenced Buchanan to serve 80 months in custody and four years of supervised release. Buchanan appealed his conviction to the Eighth Circuit. The Eighth Circuit affirmed his conviction on July 27, 2009.
On December 6, 2010, Buchanan filed this petition for writ of habeas corpus. He alleges that he received ineffective assistance of counsel at all stages of his criminal proceedings and, therefore, he asserts his conviction is in violation of the Constitution. After concluding that Buchanan was entitled to an evidentiary hearing on his petition, the court appointed counsel to represent him. The evidentiary hearing was held on September 14, 2011.
Buchanan seeks relief pursuant to 28 U.S.C. § 2255. Title 28 of the United States Code, section 2255 provides in part as follows:
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 exercise of due diligence.
In this case, the Judgment of Conviction was filed on October 24, 2008.
Buchanan filed his notice of appeal on October 27, 2008. The Eighth Circuit issued its opinion affirming the conviction on July 27, 2009. Buchanan then petitioned for rehearing en banc. This petition was denied on September 8, 2009. Buchanan had 90 days from the date the petition for rehearing was denied to file a petition for writ of certiorari. See Clay v. United States, 537 U.S. 522, 532 (2003) (federal defendants who do not file a petition for certiorari with the Supreme Court on direct review have one year after the time for seeking such review expires to file their § 2255 petition). It is from this date that the one-year period of limitations began to run. See Sup. Ct. R. 13(3). Under this statute of limitations, Buchanan would have had until December 7, 2010, to file a petition ...