Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hernandez v. United States

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

December 14, 2017

JESUS A. HERNANDEZ, (BOP Registration No. 38315-177), Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          ED KINKEADE, UNITED STATES DISTRICT JUDGE

         Movant Jesus A. Hernandez, 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. Nos. 2 & 3. Because his Section 2255 motion is untimely, as explained below, the Court DISMISSES the motion with prejudice as barred by the applicable statute of limitations.

         Background

         In 2009, Movant pleaded guilty to conspiracy to possess with the intent to distribute and distribution of a controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(A). See United States v. Hernandez, 3:08-CR-0229-K-(2) (N.D. Tex.), Dkt. No. 355. On October 1, 2009, the Court entered judgment and sentenced Movant to 180 months in prison with five years of supervised release. See Id. He did not appeal. See Id. The Court later reduced his sentence under 18 U.S.C. § 3582(c) based on a retroactive amendment to the United States Sentencing Guidelines. See United States v. Hernandez, 3:08-CR-0229-K-(2) (N.D. Tex.), Dkt. No. 524.

         On June 3, 2017, Movant filed this Section 2255 motion. See Dkt No. 2 at 12. He claims that the government violated the plea agreement and that his counsel was ineffective in representing him during plea negotiations, at sentencing, and in failing to file a notice of appeal. See Dkt No. 2 at 4-8; see also Dkt No. 3. The government has moved to dismiss his motion, arguing that it is barred by the statute of limitations. See Dkt No. 8. Movant replies that the Court should treat his motion as timely because he “do[es] not have knowledge about the law” and his counsel failed to file a direct appeal in 2009. See Dkt No. 9 at 2.

         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). Movant does not allege any facts that could trigger a starting date under Sections 2255(f)(2)-(4), so his limitations period began to run when his judgment of conviction became final. See § 2255(f)(1). His conviction became final on October 11, 2009, 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 ten days of the entry of judgment; amended to fourteen days effective December 1, 2009); see alsoUnited 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). And the government is correct that the Court's reduction of his sentence under 18 U.S.C. § 3582(c) did not re-start the statute of limitations under Section 2255(f)(1). See United States v. Olvera, 775 F.3d 726, 729 (5th Cir. 2015) (holding that a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.