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Herman Lemusu v. United States of America

August 9, 2012

HERMAN LEMUSU,
PETITIONER,
v.
UNITED STATES OF AMERICA
RESPONDENT.



The opinion of the court was delivered by: Helen Gillmor United States District Judge

ORDER DENYING PETITIONER HERMAN LEMUSU'S HABEAS CORPUS PETITION AS UNTIMELY (DOC. 298).

On April 11, 2002, a Grand Jury issued an Indictment charging Petitioner Herman Lemusu ("Petitioner"). (Doc. 9). On March 20, 2003, a Grand Jury issued a Third Superseding Indictment charging the Petitioner with six counts related to the distribution of 50 grams or more of methamphetamine, and money laundering in connection with such distribution. (Doc. 88). On April 18, 2003, after a jury trial, the Petitioner was convicted by a jury on all six counts. (Doc. 124). On December 1, 2003, the Court sentenced Petitioner. (Doc. 167). The procedural history herein provides a more detailed history of the case following sentencing.

On November 16, 2009, Petitioner filed a Habeas Corpus Petition pursuant to 28 U.S.C. § 2255. (Doc. 298). On January 6, 2010, the Court issued an Order denying the Petition as untimely.

(Doc. 303). On January 26, 2010, Petitioner filed a Motion to Alter or Amend the Court's Order, arguing that grounds for equitable tolling were present that made his Habeas Corpus Petition timely. (Doc. 304). On February 11, 2010, the Court issued an Order that considered Petitioner's grounds for equitable tolling, and denied the Motion. (Doc. 305).

On April 2, 2012, the Ninth Circuit Court of Appeals issued a Mandate reversing the District Court's Order denying the Habeas Corpus Petition, and remanding to provide Petitioner with an opportunity to present his position on the timeliness of his Petition. (Doc. 322). On remand, the Petitioner contends that his Petition was timely listing three grounds for equitable tolling of the statute of limitations. Petitioner points to the same grounds for equitable tolling that he previously set forth in his Motion to Alter or Amend. After a thorough review of the Petitioner's position, the Court finds Petitioner has failed to establish grounds for equitable tolling. Petitioner's Habeas Corpus Petition (Doc. 298) is DENIED as untimely.

PROCEDURAL HISTORY

On April 11, 2002, the Government filed an Indictment against Petitioner Herman Lemusu. (Doc. 9).

On March 20, 2003, the Government filed a Third Superseding Indictment containing six counts. (Doc. 88).

On April 18, 2003, after a jury trial, the Petitioner was convicted by a jury of conspiring to distribute 50 grams of more of methamphetamine and multiple counts of money laundering. (Doc. 124).

On December 1, 2003, the Court sentenced Petitioner. (Doc. 167). On December 11, 2003, Petitioner filed a Notice of Appeal. (Doc. 170).

On June 9, 2005, the Ninth Circuit Court of Appeals affirmed Petitioner's conviction, but remanded to allow the District Court an opportunity to consider resentencing Petitioner in light of United States v. Booker, 543 U.S. 220 (2005). (Doc. 191).

On August 17, 2005, the Court issued an Order declining to resentence Petitioner and adopting the sentencing judgment of December 10, 2003. (Doc. 204).

On September 6, 2005, Petitioner filed a Notice of Appeal of the Court's Order declining to resentence Petitioner. (Doc. 206).

On April 16, 2007, the United States Supreme Court denied Petitioner's Petition for a Writ of Certiorari. (Doc. 304-1).

On May 4, 2007. the Ninth Circuit Court of Appeals affirmed the District Court's Order declining to resentence Petitioner on remand. (Doc. 261).

On September 22, 2008, the Ninth Circuit Court of Appeals issued a Mandate dismissing Petitioner's subsequent August 11, 2008 Appeal, which was the last in a series of appeals of his sentence and of orders denying motions relating to his sentence. (Doc. 296).

On November 16, 2009, Petitioner Herman Lemusu filed a Habeas Corpus Petition pursuant to 28 U.S.C. § 2255. (Doc. 298).

On January 6, 2010, the Court issued an Order denying the Habeas Corpus Petition as time-barred. (Doc. 303).

On January 26, 2010, Petitioner filed a Motion to Alter or Amend the Court's Order Denying his Habeas Corpus Petition. (Doc. 304).

On February 11, 2010, the Court issued an Order Denying Petitioner's Motion to Alter or Amend. (Doc. 305).

On February 22, 2010, Petitioner filed a Notice of Appeal of the Court's Order Denying his Motion to Alter or Amend. (Doc. 306).

On May 17, 2010, the Ninth Circuit Court of Appeals issued an Order directing the Court to issue or decline to issue a ...


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