United States District Court, N.D. Texas, Dallas Division
JESUS A. HERNANDEZ, (BOP Registration No. 38315-177), Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
KINKEADE, UNITED STATES DISTRICT JUDGE
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
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.
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.
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
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(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
(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