The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant sets forth that his trial counsel rendered ineffective assistance by failing to (1) communicate a plea offer; (2) investigate a juror whom movant thought he recognized; (3) request a special verdict form; and (4) present expert testimony at trial or sentencing. (Motion ("Mot.") at 4-7.)
By Order, filed on November 2, 2010, the court ordered the government to respond. On November 19, 2010, respondent filed a motion to dismiss on the ground that the motion was filed beyond the one-year AEDPA*fn1 statute of limitations; in the alternative, respondent requested an extension of time to respond to the § 2255 motion on the merits.
Movant's opposition was filed on December 20, 2010. Motion to Dismiss Under 28 U.S.C. § 2255, "[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 exercise of due diligence."
The Ninth Circuit has stated:
Under AEDPA, federal prisoners are typically required to file a motion for habeas relief within one year from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255. As the Supreme Court has explained, "[b]y 'final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (applying this definition to determine retroactivity of a criminal procedural rule). Moreover, "[a]pplied in the context of a criminal prosecution, finality is normally defined by the imposition of the sentence." Flynt v. Ohio, 451 U.S. 619, 620, 101 S.Ct. 1958, 68 L.Ed.2d 489 (1981) (per curiam); see also Teague v. Lane, 489 U.S. 288, 314 n. 2, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ("[A] criminal judgment necessarily includes the sentence imposed upon the defendant.").
The government moves for dismissal on the grounds that the motion is untimely. (Motion to Dismiss (hereinafter "MTD") at 1-5.) Citing to the docket of this criminal case, respondent notes that, on February 4, 2005, a jury found movant guilty of possessing, and conspiring to possess and distribute, a listed chemical (pseudoephedrine) with knowledge, or having reasonable cause to believe, that it would be used to manufacture methamphetamine, in violation of Title 21, U.S.C. sections 846 and 841(c)(2). (MTD at 2; Doc. Nos. 355, 452.) On May 12, 2005, the district court granted movant's motion for acquittal on the conspiracy count, and transferred venue for the possession count to the Central District of California. (Id.; Doc. No. 516.) Respondent appealed the district court's ruling regarding venue to the Ninth Circuit and prevailed. (Id.; Doc. No. 586.) On March 13, 2007, movant was sentenced to 207 months in federal prison. (Id.; Doc. No. 595.) Movant timely filed an appeal of his conviction. (Id.; Doc. No. 596.) On July 2, 2009, the Ninth Circuit affirmed movant's conviction. (Id.; Doc. No. 615.) The mandate from the Ninth Circuit issued on July 23, 2009. (Id.; Doc. No. 617.) Movant did not request rehearing, nor file a petition for writ of certiorari. (Id.)
Citing Clay v. United States, 537 U.S. 522, 532, 123 S. Ct. 1072 (2003), respondent notes that a conviction becomes final when the 90-day period for filing a petition for writ of certiorari expires. (MTD at 4-5; see also Carrington v. U.S., 503 F.3d 888, 892 (9th Cir. 2007) (noting that Sup. CT. R. 13 allows 90 days from a circuit court decision for the filing of a petition for a writ of cert.)). Therefore, movant's conviction became final 90 days following issuance of the Ninth ...