FINDINGS AND RECOMMENDATIONS
Movant, a former federal prisoner, is proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Movant claims that his trial counsel in this action rendered ineffective assistance. Respondent has filed a motion to dismiss, arguing that movant's claims are barred by the statute of limitations contained in 28 U.S.C. § 2255(f). Upon careful consideration of the record and the applicable law, the court will recommend that respondent's motion to dismiss be granted and the § 2255 motion be dismissed as untimely.
On April 2, 2002, movant entered a guilty plea on two counts of health care fraud, each count prosecuted in a separate criminal case.*fn2 On October 1, 2002, movant was sentenced to twelve months imprisonment on each count, with those prison terms to be served concurrently, and was ordered to pay restitution in the amount of $2,000,000, a fine of $5,000, and a mandatory special assessment of $200. Movant was also sentenced to a three year term of supervised release following his release from custody. Movant did not file an appeal. The instant § 2255 motion was filed on December 29, 2006. Movant's supervised release term expired on December 30, 2006.
II. Timeliness of § 2255 Motion
Respondent argues that the instant motion is barred by the statute of limitations set forth at 28 U.S.C. § 2255(f). Respondent also requests additional time to respond to the merits of the § 2255 motion in the event the court concludes that the motion is not time-barred. For the reasons set forth below, the undersigned agrees that the pending § 2255 motion is untimely and will therefore recommend that it be dismissed.*fn3
The following factual background is derived from the allegations set forth in movant's § 2255 motion pending before the court. Movant and Primex Clinical Laboratories, Inc. (Primex) were represented by the same counsel in connection with a criminal investigation into the activities of Primex and its principles, including movant. (Points and Authorities in Support of § 2255 Motion (P&A) at 2-4.) According to movant, his counsel informed him that the State of California "had evidence that Primex fraudulently obtained two million dollars." (Id. at 3.) Based on this information, and on the "financial hardship to Primex and Petitioner caused by the State of California's actions," movant agreed to "a plea deal to resolve and stop all further State and Federal government actions against Primex." (Id.) Movant was forced to divest his ownership interest in Primex as a result of the plea agreement. (Id. at 6.) On January 9, 2004, movant discovered that the State of California had conducted an audit of Primex and concluded that "no financial fraud occurred at Primex Clinical Laboratories, Inc., contrary to the original claims by the State of the alleged $2,000,000.00 of fraud." (Id. at 5.) On January 28, 2004, movant's trial counsel wrote him a letter, advising him that his "current client" was Primex, and stating that if movant wished to retain counsel to address his "post-conviction problems," movant and counsel would have to "discuss our attorney-client situation since you are no longer a part of Primex." (§ 2255 Motion, Ex. 6.) In July of 2004, the California Department of Health Services entered into a settlement agreement with Primex and its principals. (§ 2255 Motion, Ex. 4.) According to movant, that settlement agreement "lifted sanctions against Primex and allowed Primex to continue service with the State under the Medi-Cal program." (P&A at 5.)
In his § 2255 motion now pending before the court, movant alleges that after he entered the plea agreement in his criminal case and was divested of his interest in Primex, he became a separate entity from Primex and thus a separate client in the same criminal matter. Without informing Petitioner of any potential conflict, counsel remained Petitioner's counsel as well as Primex's counsel.
(Id. at 6.) Movant contends that as a result, he received ineffective assistance of counsel in that "said attorney proceeded to represent both Primex and the Petitioner herein, without advising Petitioner that his representation of both Primex and Petitioner may have constituted a conflict of interests and a violation of Professional conduct." (Id. at 3.) Movant also alleges that his trial counsel improperly failed to conduct investigation to determine the extent of the financial fraud committed by Primex. (Id. at 6-7.) He argues that a proper defense investigation would have revealed that Primex did not commit fraud, as later determined by the California Controller's Office audit. (Id. at 7.) Movant summarizes his claim for relief as follows:
Had Petitioner's counsel advised Petitioner to retain separate counsel as the California State Bars (sic) Professional Conduct rule 3-310 requires, the new counsel would not have had the interests of another client, in this instance Primex, conflict with their duties and would have correctly questioned the State of California's $2,000,000.00 alleged fraudulent billing.
Respondent argues that movant's § 2255 motion is barred by the statute of limitations set forth in 28 U.S.C. § 2255(f). ...