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Ramirez v. United States

United States District Court, N.D. Texas, Dallas Division

November 16, 2017

JAIME ALEJANDRO RAMIREZ (BOP Registration No. 47007-177), Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          ED KINKEADE, UNITED STATES DISTRICT JUDGE

         Movant Jaime Alejandro Ramirez, a federal prisoner, proceeding pro se, has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence. See Dkt. No. 2. Because his Section 2255 motion is barred by the statute of limitations, for the reasons set forth below, the Court DISMISSES the motion with prejudice.

         Background

         Ramirez pleaded guilty to unlawful possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). See United States v. Ramirez, 3:13-CR-0324-K-(01) (N.D. Tex.), Dkt. No. 26. The Court sentenced him to 70 months in prison. See United States v. Ramirez, 3:13-CR-0324-K-(01) (N.D. Tex.), Dkt. No. 32. That judgment was entered on April 16, 2014. See Id. Ramirez did not appeal.

         In June 2016, Ramirez sought permission from the United States Court of Appeals for the Fifth Circuit to file a second or successive 28 U.S.C. § 2255 motion. See In re Ramirez, No. 16-10931 (5th Cir. 2016). The Fifth Circuit transferred his Section 2255 motion to this Court because, as it was his first, he did not need authorization before filing it. The Fifth Circuit noted that Ramirez's Section 2255 motion would deemed filed on June 27, 2016-“the date the motion for authorization was received in this court.” See In re Ramirez, No. 16-10931 (5th Cir. Aug. 5, 2016). The government responds that his Section 2255 motion is untimely, see Dkt. No. 8 at 3-5, and Ramirez has not filed a reply.

         Statute of Limitations

         “[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, under Section 2255(f)(1), Ramirez's limitations period began to run when his judgment of conviction became final. His conviction became final on April 30, 2014, when his time to file a direct appeal expired. See Fed. R. App. P. 4(b)(1)(A)(i) (stating that an appeal in a criminal case must be filed within fourteen days of the entry of judgment); see also United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008) (holding that, where a federal prisoner does not file a direct appeal, his conviction becomes final when his time to do so expires). His limitations period expired one year later, on April 30, 2015.

         To the extent that Ramirez attempts to rely on Johnson v. United States, 135 S.Ct. 2551 (2015) to reset the statute of limitations under Section 2255(f)(3), his reliance is misplaced. In his initial application for authorization, Ramirez indicated-by checking two boxes on a form pleading-that he was challenging a conviction for violating the Armed Career Criminal Act, and a sentencing enhancement under U.S.S.G. § 4B1.2, as unconstitutional after Johnson. Johnson held “that imposing an increased sentence under the residual clause of the Armed Career Criminal Act, ” 18 U.S.C. § 924(e)(2)(B)(ii)-which clause defines a “violent felony” as one ...


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