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Penalosa-Duarte v. United States

United States District Court, N.D. Georgia, Gainesville Division

November 27, 2018

ELIO PENALOSA-DUARTE, BOP Reg. # 21453-057, Movant,
v.
UNITED STATES, Respondent.

          MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION MOTION TO VACATE 28 U.S.C. § 2255

          J. CLAY FULLER UNITED STATES MAGISTRATE JUDGE

         Movant, a federal prisoner, has filed a 28 U.S.C. § 2255 motion to vacate the 108-month sentence he received on December 21, 2016, after the entry of his guilty plea in this Court. (Doc. 63; see Doc. 58). “If it plainly appears from the [§ 2255] motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the [court] must dismiss the motion . . . .” Rule 4 Governing § 2255 Proceedings; see also Day v. McDonough, 547 U.S. 198, 209-10 (2006) (“district courts are permitted . . . to consider, sua sponte, the timeliness of a state prisoner's habeas petition, ” but “before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions”).[1]

         Movant dated his unsigned § 2255 motion on November 1, 2018. (Doc. 63 at 4). He raises only one claim: “On this particular case at the hearing of sentence Mr. Penaloza-Duarte counsel [sic] failed to argue that the sentences should have been running concurrently instead of consecutive.” (Id. at 3). The Court notes that Movant's sentences do in fact run concurrently. (See Doc. 58 at 2).

         I. The § 2255 Motion Is Time-Barred.

         A 28 U.S.C. § 2255 motion is governed by a one-year statute of limitations, which runs from the latest of the following 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;
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

         Absent one of the circumstances set forth in subparagraphs two through four above-and there is no indication that any such circumstance exists here-the limitations period begins to run when a § 2255 movant's judgment of conviction becomes final.

         Movant's Judgment & Commitment Order was entered on December 22, 2016, and his convictions became final under § 2255(f)(1) on January 5, 2017, at the close of the 14-day direct appeal window. See Fed. R. App. P. 4(b)(1). Movant thus had until January 5, 2018 to file a timely § 2255 motion, and he failed to do so.

In most cases, a judgment of conviction becomes final when the time for filing a direct appeal expires. Akins v. United States, 204 F.3d 1086, 1089 n.1 (11th Cir. 2000). There are two recognized exceptions to this general rule, which apply when a federal prisoner seeks direct appellate review of her conviction or sentence. First, if, following the disposition of her direct appeal, a federal prisoner files a petition for a writ of certiorari with the U.S. Supreme Court, the conviction becomes final when the Supreme Court either denies certiorari or issues a decision on the merits. See Washington v. United States, 243 F.3d 1299, 1300 (11th Cir. 2001). Second, if the federal prisoner does not file a timely certiorari petition after disposition of her direct appeal, the conviction becomes final on the date on which the prisoner's time for filing such a petition expires, which is 90 days after the entry of judgment on direct appeal. See Clay v. United States, 537 U.S. 522, 532 (2003). Here, neither exception applies because Ramirez did not file a direct appeal of her conviction.

Ramirez v. United States, 146 Fed.Appx. 325, 325-26 (11th Cir. 2005) (rejecting appellant's assertion that “because she filed her § 2255 motion within 1 year and 90 days of the entry of her written judgment of conviction, her motion was timely”; and ruling that her “conviction became final on May 12, 2003, ” when the time expired for her to file a direct appeal, “and, therefore, her § 2255 motion, which was filed on July 28, 2004, was untimely”); see Sup. Ct. R. 13.1 (“[A] petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by . . . a ...


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