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United States v. Hernandez-Oviedo

United States District Court, S.D. Texas, Corpus Christi Division

April 26, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RODRIGO HERNANDEZ-OVIEDO, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER

          NELVA GONZALES RAMOS UNITED STATES DISTRICT JUDGE

         Defendant/Movant Rodrigo Hernandez-Oviedo filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (D.E. 22).[1] The United States of America (the "Government") moved to dismiss Movant's § 2255 motion as untimely (D.E. 27), and Movant has not responded. For the reasons stated herein, the Government's motion to dismiss is GRANTED, and Movant's § 2255 motion is DENIED.

         I. BACKGROUND

         On July 27, 2016, Movant pled guilty to illegal re-entry in violation of 8 U.S.C. §§ 1326(a)(1) and 1326(b)(2) before a United States magistrate judge. The Court accepted the magistrate's recommendation to accept Movant's plea and find him guilty, and Movant was adjudicated guilty. He was sentenced to 33 months' imprisonment on November 2, 2016. Judgment was entered November 8, 2016. Movant did not appeal. He filed the present motion under § 2255 on January 4, 2018, at the very earliest.[2]

         II. MOVANT'S ALLEGATIONS

         Movant's § 2255 motion raises the following claims:

1) Counsel was ineffective for failure to negotiate the plea agreement,
2) Counsel was ineffective at sentencing for failure to object to the sentence imposed; and
3) Counsel and the Court failed to apply the Fast Track Program.

         III. ANALYSIS

         A. 28 U.S.C.§ 255

         There are four cognizable grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) constitutional issues, (2) challenges to the district court's jurisdiction to impose the sentence, (3) challenges to the length of a sentence in excess of the statutory maximum, and (4) claims that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam). In addition, "a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982).

         B. Statute of Limitations

         A motion made under § 2255 is subject to a one-year statute of limitations, which, in most cases, begins to run when the judgment becomes final. 28 U.S.C. § 2255(f).[3] The Fifth Circuit and the Supreme Court have held that a judgment becomes final when the applicable period for seeking review of a final conviction has expired. Clay v. United States,537 ...


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