The opinion of the court was delivered by: J. Michael Seabright United States District Judge
) ORDER: 1) DENYING MOTION ) UNDER 28 U.S.C. § 2255 TO ) VACATE, SET ASIDE, OR CORRECT ) SENTENCE BY A PERSON IN ) FEDERAL CUSTODY; AND ) 2) DENYING CERTIFICATE OF ) APPEALABILITY
Petitioner Elias Jauregui ("Jauregui") has 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"). Because the Petition is time-barred, it is DENIED. Further, because the Petition is so clearly time-barred, the court declines to enter a certificate of appealability.
The Petition arises from Jauregui's January 4, 2007 guilty plea to two Counts of a Second Superseding Indictment involving a drug distribution conspiracy. Doc. No. 252 (Cr. No. 05-00190-04 JMS). On July 12, 2007, the court sentenced Jauregui to 240-months incarceration on each Count, with terms to be served concurrently. Doc. No. 347. Judgment was entered on July 17, 2007. Doc. No. 354. On July 19, 2007, and July 25, 2007, Jauregui filed Notices of Appeal.*fn1 On January 21, 2009, the judgment was affirmed by the Ninth Circuit Court of Appeals, Doc. No. 434, and the mandate issued on March 16, 2009. Doc. No. 438. As a result, the time to petition to the U.S. Supreme Court for writ of certiorari expired on or about April 21, 2009. Jauregui, however, did not file this Petition until December 10, 2012 -- almost three years and eight months after that time expired.
Because the Petition appeared time-barred, the court issued Jauregui a December 13, 2012 Order to Show Cause ("OSC") why his Petition should not be denied as time-barred. Doc. No. 446.*fn2 Specifically, after setting forth the appropriate legal framework, the OSC ordered Jauregui "to SHOW CAUSE why the Petition should not be dismissed as barred by the statute of limitations." Jauregui filed a response to the OSC on January 28, 2013. Doc. No. 447. After reviewing the Petition and the response to the OSC, the court determines that the Petition is time-barred and thus is DENIED.
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 affirmed Jauregui's conviction and sentence on January 21, 2009 (although the mandate issued on March 16, 2009). Jauregui did not file a petition for writ of certiorari. Thus, the conviction became final ninety days after January 21, 2009. 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, Jauregui's conviction became final on April 21, 2009, which is ninety calendar days ...