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United States v. Madrid

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 21, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ROBERT MADRID, DEFENDANT.

The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge

ORDER

On June 19, 2007, Defendant filed an ex parte request for leave to file a motion pursuant to 28 U.S.C. § 2255 for the limited purpose of challenging the 4-point enhancement he received at sentencing by this Court. The proposed order submitted by Defendant along with the request indicates that the motion would be filed within 60 days.

Although not indicated in Defendant's request, the Court recognizes that Defendant was sentenced on June 22, 2006 and his judgment of conviction was entered June 30, 2006. Accordingly, the 1-year period of limitation for filing a § 2255 motion is almost at an end. See 28 U.S.C. § 2255, ¶ 6 ("A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from . . . (1) the date on which the judgment of conviction becomes final . . . ."); United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (holding that judgment of conviction becomes final upon expiration of time for filing direct appeal); Fed. R. App. P. 4(b)(1)(A)(i) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after . . . the entry of either the judgment or the order being appealed . . . ."). However, Defendant has not set forth any good cause for extending the statutory 1-year deadline. And, in any event, Defendant's motion might be in violation of his plea agreement because he waived his "right to appeal or to collaterally attack [his] conviction and sentence" as part of that agreement. See Feb. 14, 2005 Plea Agreement at 11-12; Doc. #512.

Defendant does not need leave of the Court to file a motion under 28 U.S.C. § 2255. However, he must do so timely and explain why he has not waived his right to pursue a § 2255 motion. To the extent that Defendant is requesting leave to extend the deadline to file such a motion, that request is DENIED. The Clerk shall enter this order forthwith and immediately mail a copy to Defendant.

IT IS SO ORDERED.

20070621

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