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Silva v. United States

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

January 22, 2018

CESAR SILVA ID # 48272-177, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By Special Order 3-251, this habeas case has been automatically referred for findings, conclusions, and recommendation. Based on the relevant findings and applicable law, the amended Motion Under 28 U.S.C. § 2255, to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (doc. 4) should be DENIED with prejudice as barred by the statute of limitations.

         I. BACKGROUND

         Cesar Silva (Movant) challenges his federal conviction and sentence in Cause No. 3:14-CR-261-P. The respondent is the United States of America (Government).

         Movant was convicted of conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C) (Count One) and felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count Two). By judgment entered on April 6, 2015, he was sentenced to 128 months' imprisonment for Count One and 120 months' imprisonment for Count Two, with the sentences to be served concurrently. (See doc. 80 at 2.)[1] He did not appeal.

         Movant's initial § 2255 motion, signed on June 27, 2016, was received on July 7, 2016. (See No. 3:16-CV-1987-G, doc. 2 at 1.) It alleged that the residual clause of a career offender sentencing guideline that increased his offense level was unconstitutionally vague in light of Johnson v. United States, 135 S.Ct. 2551 (2015).

         II. STATUTE OF LIMITATIONS

         Section 2255 of Title 28 “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 that:

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 ...

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