IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 26, 2011
UNITED STATES OF AMERICA, PLAINTIFF,
FRANCISCO MEDINA CASTENEDA,
The opinion of the court was delivered by: Edward J. Garcia, Judge United States District Court
ORDER GRANTING MOTION FOR RECONSIDERATION AND DIRECTING UNITED STATES TO FILE A RESPONSE
This matter is before the court on defendant's motion for reconsideration of the court's August 11, 2011 order denying his § 2255 motion as untimely. Defendant seeks reconsideration, pointing out that his post-conviction motion was filed within the one-year limitations period when measured from the date on which his petition for certiorari to the Supreme Court was denied. Defendant is correct. At the time the court denied the § 2255 motion it was unaware defendant had sought certiorari from the Supreme Court. That fact is not mentioned in any of his § 2255 documents, nor does it appear on the official district court docket. The information available to the court revealed only that defendant's conviction and sentence had been affirmed by the Ninth Circuit in an unpublished memorandum disposition filed July 2, 2009. Measured from that date, his February 28, 2011 § 2255 motion was untimely. However, in seeking reconsideration defendant has attached a letter received by his appellate attorney from the Clerk of The Supreme Court in which the court confirms that an order was entered March 1, 2010 denying defendant's petition for writ of certiorari.
In view of this evidence, defendant's § 2255 motion, filed February 28, 2011, was timely, having been filed within one year of March 1, 2010, the date on which the judgment of conviction became final. Accordingly, the motion for reconsideration is GRANTED, and defendant's § 2255 motion is reinstated. The government is directed to file a response to the motion within 30 days from the date of this order.*fn1 Defendant may file a reply within 30 days after receipt of the government's response. The matter will stand submitted upon receipt by the court of the final brief.
IT IS SO ORDERED.
Edward J. Garcia