The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN A FEDERAL
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN A FEDERAL CUSTODY
On August 15, 2012, Petitioner Hector Cruz ("Cruz") filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in a Federal Custody (the "Petition").*fn1 Doc. No. 754 (Cr. No. 07-00268-03). The Petition arises from Cruz's May 14, 2008 guilty plea to charges involving a drug distribution conspiracy, and his subsequent July 28, 2009 sentence. After Cruz filed this Petition, the court issued an Order to Show Cause Why the Petition Should Not Be Dismissed ("OSC"), given that the Petition was filed nearly one year past the deadline for such a Petition. See Doc. No. 755. The court allowed Cruz until October 23, 2012 to file a response. Id. at 5. The court later extended the time to respond to the OSC until November 6, 2012. No response was filed.*fn2
Because it is undisputed that this Petition is time-barred, and there are no circumstances indicating the possible applicability of equitable tolling, the Petition is DENIED.
On July 28, 2009, the court sentenced Cruz to 174 months incarceration, and judgment was entered on July 29, 2009. On August 7, 2009, Cruz filed a Notice of Appeal. On July 2, 2010, the appeal was dismissed by the Ninth Circuit Court of Appeals. The time to petition to the U.S. Supreme Court for writ of certiorari expired on or about September 30, 2010. Cruz did not file this Petition until August 15, 2012 -- almost two years after that time expired.
A one-year statute of limitations applies to § 2255 motions, which runs 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.
The Petition is not timely under § 2255(f)(1). In this instance, "a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Clay v. United States, 537 U.S. 522, 525 (2003). The Ninth Circuit dismissed Cruz's appeal on July 2, 2010 (although the mandate issued on July 26, 2010). Cruz did not file a petition for writ of certiorari. Thus, the conviction became final ninety days after July 2, 2010. See id. at 527 (reasoning that "[t]he time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice)") (quoting Supreme Court Rule 13(3)). That is, Cruz's conviction became final on September 30, 2010, which is ninety ...