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Benitez-Alvarado v. United States

United States District Court, N.D. Texas, Fort Worth Division

November 7, 2017

HUBER BENITEZ-ALVARADO, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          REED O' CONNOR, UNITED STATES DISTRICT JUDGE.

         Huber Benitez-Alvarado (“Movant”) filed, through counsel, a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. After considering his Section 2255 motion (ECF No. 1) and the government's response (ECF No. 5), the Court concludes that the Section 2255 motion should be dismissed with prejudice as time-barred.

         Applicable Background

         Movant pleaded guilty to conspiracy to possess with the intent to distribute a controlled substance. See United States v. Benitez-Alvarado, 4:14-cr-057-O-(01) (N.D. Tex.), ECF No. 66. The Court sentenced him to 135 months in prison with three years of supervised release. See id.

         The United States Court of Appeals for the Fifth Circuit affirmed Movant's judgment on August 25, 2015. See United States v. Benitez-Alvarado, 614 F. App'x 220 (5th Cir. 2015). Movant did not file a petition for a writ of certiorari. On November 28, 2016, Movant's counsel electronically filed this 28 U.S.C. § 2255 motion. See ECF No. 1 at 20 (certifying that the motion “was e-filed on the 28th day of November, 2016 ”). The government responds that the Section 2255 motion is time-barred. See ECF No. 5 at 6-8. Movant did not file a reply.

         Statute of Limitations

         Movant's Section 2255 motion is time-barred. “[Section] 2255 establishes a ‘1-year period of limitation' within which a federal prisoner may file a motion to vacate, set aside, or correct his sentence under that section.” Dodd v. United States, 545 U.S. 353, 356 (2005). It states:

         A 1-year period of limitation shall apply to a motion under this section. The limitation period 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 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.

         28 U.S.C. § 2255(f). Here, Movant's statute of limitations began to run when his judgment of conviction became final. See 28 U.S.C. § 2255(f)(1).[1] Movant's conviction became final on November 23, 2015, when the ninety-day period for filing a certiorari petition expired. See Clay v. United States, 537 U.S. 522, 527 (2003) (holding that “[f]inality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires”). Movant had one year from that date-or until November 23, 2016-to timely file his Section 2255 motion. His motion, filed on November 28, 2016, is time-barred absent equitable tolling.

         “[T]he statute of limitations in § 2255 may be equitably tolled in ‘rare and exceptional circumstances.'” United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). Equitable tolling “applies principally where [one party] is actively misled by the [other party] about the cause of action or is prevented in some extraordinary way from asserting his rights.” See Coleman v. Johnson, 184 F.3d 398, 402 (quoting Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). To warrant equitable tolling, Movant must show that: 1) he has been pursuing his rights diligently, and ...


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