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United States v. Avila


August 31, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Movant is a federal prisoner proceeding without counsel with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Pending before the court is respondent's motion to dismiss on grounds that this action is barred by the statute of limitations. For the following reasons, respondent's motion should be granted.

This action is proceeding on the § 2255 motion filed May 28, 2010, raising two claims. In the first claim, movant alleges that he plead guilty due to ineffective assistance of counsel. Movant alleges that his counsel "cajoled and hoodwinked" him into pleading guilty when it is more than likely that he would not have been convicted by a jury. Movant further alleges that his counsel interviewed no witnesses and failed to hire an investigator.

In the second claim, movant alleges that the Presentencing Investigation Report ("PSIR") was inaccurate. Movant alleges that the sentence recommendation in the PSIR exceeded the guidelines penalties range. In claim two, movant also alleges that he is raising claims pursuant to United States v. Booker/Fanfan, 543 U.S. 220 (2005), Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and Jones v. United States, 526 U.S. 227 (1999).

28 U.S.C. § 2255(f) sets forth the statute of limitations for motions brought pursuant to 28 U.S.C. § 2255:

(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 government 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 exercise of due diligence.

28 U.S.C. § 2255(f).

Movant plead guilty on October 12, 2007. (Dkt. No. 40.) On February 22, 2008, movant was sentenced to 210 months. (Dkt. No. 47.) On March 10, 2008, judgment was entered. (Dkt. No. 48.) Movant did not appeal.

Respondent argues that movant's conviction became final on March 24, 2008, i.e. fourteen days after judgment was entered. See Fed. R. App. P. 4(b)(1)(a) (14 days to file an appeal after judgment entered). Respondent argues that pursuant to 28 U.S.C. § 2255(f)(1), movant had one year from that date to file a timely § 2255 motion, i.e. until March 23, 2009. Therefore, the pending motion, filed May 28, 2010, is not timely.

The undersigned agrees that § 2255(f)(1) is the proper statute of limitations. Movant's claims are not based on a right newly recognized by the Supreme Court. Nor was movant's ability to raise these claims impeded by government action. In addition, the facts on which movant's claims are based were available through diligence at the time of his conviction. For example, that counsel failed to interview witnesses or hire an investigator was a fact available through the exercise of due diligence at the time of movant's conviction.

In his opposition to the pending motion, movant argues that he is entitled to equitable tolling based on actual innocence. The first problem with this argument is that movant is not raising an actual innocence claim. The second problem with this argument is that in a habeas action brought by a state prisoner pursuant to 28 U.S.C. § 2254, the Ninth Circuit recently held that there is no actual innocence exception to override the statute of limitations. Lee v. Lampert, 610 F.3d 1125, 1136 (9th Cir. 2010). The reasoning of the Ninth Circuit in Lee v. Lampert is equally applicable to an action brought pursuant to 28 U.S.C. § 2255.

For the reasons discussed above, respondent's motion to dismiss should be granted.


1. Respondent's motion to dismiss (Dkt. No 52) movant's motion pursuant to 28 U.S.C. § 2255 (Dkt. No. 49) be granted;

2. The clerk of the court be directed to close the companion civil case No. 2: 10-cv-1334 GEB KJN P.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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