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United States v. Resendez-Sanchez

July 17, 2010

UNITED STATES OF AMERICA, RESPONDENT,
v.
JORGE RESENDEZ-SANCHEZ, MOVANT.



FINDINGS AND RECOMMENDATIONS

Movant has filed a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. Movant claims that he received ineffective assistance from his trial counsel. Respondent has filed a motion to dismiss, arguing that movant's claim is barred by the applicable statute of limitations. Upon careful consideration of the record and the applicable law, the court will recommend that respondent's motion to dismiss be granted and that movant's § 2255 motion be dismissed as untimely.

PROCEDURAL HISTORY

On August 11, 2005, a federal grand jury indicted movant on a violation of 8 U.S.C. § 1326, alleging that he illegally re-entered the United States following his deportation and that his deportation was subsequent to him having suffered a conviction for commission of an aggravated felony. (Doc. No. 1.) On August 29, 2005, movant was arraigned on the indictment, counsel was appointed and movant entered a plea of not guilty. (Doc. No. 7.)

On November 4, 2005, movant withdrew his plea of not guilty and entered a new plea of guilty pursuant to a plea agreement. (Doc. Nos. 16-17.) On that same day the court entered a judgment consistent with the plea agreement of the parties, and movant was sentenced to the custody of the U.S. Bureau of Prisons for a 46-month term of imprisonment. (Doc. No. 18.)

On August 21, 2007, movant on his own behalf filed a § 2255 motion with this court to vacate, set aside, or correct his sentence. (Doc. No. 22 (hereinafter "Motion").) Respondent filed a motion to dismiss on December 28, 2007. (Doc. No. 33.) Petitioner filed a traverse on January 14, 2008. (Doc. No. 34 (herein after "Traverse").)

MOVANT'S CLAIMS

Movant seeks relief alleging that he received ineffective assistance from his trial counsel. In this regard, he argues that his counsel "consistently assured" him that he would only receive a 24-month sentence. (Motion at 13, 15.)*fn1 Movant asserts that "the plea was not only involuntary, but also, the product of coercion on the part of defense counsel, with specific respect as to the consequences of the plea." (Id. at 17.) Movant also asserts that at the time of his deportation he was wheelchair bound due to an injury that occurred while in federal custody. (Id.) According to movant, federal authorities advised him that he "was entitled to medical treatment by Federal officials." (Id.) Movant therefore argues that he did not "knowingly and intentionally re-enter the United States illegally" after his deportation, but did so only to seek the medical treatment that he believed he was entitled to. (Id. at 17, 21.) Movant also argues that he did not plead guilty to the "enhancement" of his sentence based on his prior conviction for domestic violence, nor was that allegation submitted to a jury for decision as required. (Id. at 20.)

RESPONDENT'S MOTION TO DISMISS

Respondent argues that the pending motion should be dismissed because movant failed to file his motion within one year from the entry of final judgment as required under 28 U.S.C. § 2255. The statute of limitations set forth in 28 U.S.C. § 2255(f) provides as follows:

(f) 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 government 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 ...


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