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Vallejo v. United States

United States District Court, W.D. Texas, Austin Division

July 18, 2017

JOSE CRUZ VALLEJO, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SAM SPARKS UNITED STATES DISTRICT JUDGE.

         BE IT REMEMBERED on this day, the Court reviewed the file in the above-styled cause, and specifically Movant Jose Cruz Vallejo's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [#129], the Government's Response [#134] in opposition, and Vallejo's Reply [#137] in support as well as Vallejo's Motion and Affidavit in Support of Request to Proceed In Forma Pauperis [#130]. Having considered the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders.

         Background

         On September 15, 2015, Movant Jose Cruz Vallejo was charged in Counts One, Two, and Four of a seven-count indictment with two co-defendants. Vallejo was charged with Conspiracy to Possess with Intent to Distribute 50 grams or more of a Methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) (Count One); Possession with Intent to Distribute Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count Two); and Unlawful Possession of a Firearm by a Felon, in violation of 18 U.S.C. § 922(g)(1) (Count Four). Indictment [#15].

         On November 3, 2015, Vallejo appeared before United States Magistrate Judge Andrew W. Austin and pled guilty to Counts One, Two, and Four of the Indictment pursuant to a sealed plea agreement. On January 29, 2016, this Court sentenced Vallejo to a 292-month term of imprisonment (292 months as to Count One; 292 months as to Count Two; and 120 months as to Count Four, with all terms to run concurrent), followed by a 5-year term of supervised release (5 years as to Count One; 5 years as to Count Two; and 3 years as to Count Four, with all terms to run concurrent), and ordered that Vallejo pay a $300 mandatory assessment. The Court also ordered Vallejo to forfeit all right, title, and interest in (1) $9, 500 more or less, in United States currency seized from Jimmy Rosas on August 18, 2015; (2) a Glock 9mm pistol, serial number BPS809; (3) a Jimenez Arms 9mmpistol, serial number 244834; (4) a Ruger .22 caliber rifle, serial number 35728229; (5) a Smith & Wesson .38 caliber pistol, serial number CCR3773; (6) a Ruger .22 caliber pistol, serial number 21449449; (7) a silencer seized from Jimmy Rosas on August 18, 2015; and (8) any firearm or ammunition involved in or used in the violations listed in the Indictment. J & Commitment [#79]. The judgment in this case was entered on February 2, 2016. Id. A direct appeal was not taken.

         On March 27, 2017, Vallejo executed his Motion to Vacate, claiming ineffective assistance of counsel. See Mot. Vacate [#129] at 5, 13. Specifically, Vallejo complains his attorney (1) "was the cause of [Vallejo's] unknowledgeable plea" and (2) did not respond to Vallejo's requests to file an appeal. Reply [#137] at 1-2; Mot. Vacate [#129] at 5-14. Vallejo attempts to raise the actual innocence exception to the untimeliness of his motion. Id. at 1.

         The Government responded on April 27, 2017, Resp. [#134], and Vallejo filed a reply on June 12, 2017, Reply [#137]. Vallejo's motion under § 2255 is now ripe for the Court's consideration.

         Analysis

         I. Statute of Limitations

         Vallejo's § 2255 motion is time-barred. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year limitation period for the filing of a § 2255 motion. 28 U.S.C. § 2255(f). Specifically, § 2255(f) provides:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation shall run 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 government 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 ...

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