FINDINGS AND RECOMMENDATIONS
Movant, Brandy Vega Tellez, is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 The government has filed a motion to dismiss, claiming that the motion is untimely, that Tellez waived his right to bring this motion, and that the motion is successive. For the following reasons, the motion is untimely and the government's motion to dismiss must be granted.
Tellez pleaded guilty and was sentenced to 184 months. Dckt. No. 145 at 1. Judgment was entered on April 16, 2001. Dckt. No. 107. He filed the instant motion to vacate, set aside or correct his sentence on March 25, 2011.*fn2
A section 2255 motion must be brought within a one-year limitations period. The statute provides that:
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.
Here, the government argues that the limitations period began to run on the date on which the judgment of conviction became final. A judgment of conviction becomes final "upon the expiration of the time during which [the defendant] could have sought review by direct appeal." United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001). Under Federal Rule of Appellate Procedure 4(b)(1), a criminal defendant has 14 days to file a notice of appeal after the entry of judgment. Thus, Tellez's conviction became final on April 30, 2001, and the statute of limitations expired one year later. As noted above, Tellez did not file the instant motion until March 25, 2011. Assuming section (1) applies, Tellez did not file this motion until nearly nine years after the expiration of the limitations period.
Tellez appears to argue that section (2) above should apply, because he was prevented from filing a section 2255 motion by the government's creation of an unconstitutional impediment. See Dckt. No. 165 at 3. Tellez writes:
As a federal prisoner at the FCI Lompoc, he avers the following was thwarted by the Government despite his diligence in pursuing his federal claims. The result of a deficiency in the Prison Library at Lompoc, following the destruction and removal from the shelves of all law books to the conversion of a computerized library without any training on how to navigate the complicated functionalities of the new computer research system. This action is tantamount to a denial of access to the courts.
Id. Thus, Tellez appears to be arguing that the switch between printed books and a computer system was a government-created impediment that started the statute of limitations after his conviction was final. Tellez does not explain when this switch between printed books and a computer system occurred, or how the switch accounts for his motion being filed nearly ten years after his conviction was final. Even assuming that such an argument was facially credible, Tellez was indisputably able to file a section 2255 motion during this time period because he actually did so. See Dckt. No. 129 (prior section 2255 motion). His previous section 2255 motion was dismissed on the grounds that he had expressly waived his rights to bring such a motion. See Dckt. No. 145.*fn3
Similarly, Tellez is not entitled to equitable tolling of the statute of limitations. While it is true that the one-year limitation period contained in Section 2255 is subject to equitable tolling, the burden to establish grounds that warrant equitable tolling rests with the movant. United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004); Pace v. DiGuglielmo, 544 U.S. 408, 418--19 (2005). A defendant may be entitled to equitable tolling if he can demonstrate that "extraordinary circumstances beyond his control made it impossible to file a petition on time and the extraordinary circumstances were the cause of his untimeliness." Battles, 362 F.3d at 1197. Here, the only facts Tellez provides to support equitable tolling are: 1) his law library switched from printed books to a computer system, as discussed above, and 2) his appellate attorney failed to advise him of his legal options. See Dckt. No. 165 at 3; Dckt. No. 162 at 7-8. For the reasons explained above, the law library argument fails. Tellez has not demonstrated that any change in the materials provided by his library made it impossible for him to timely file this motion, and indeed, such a claim would be belied by the docket in this case, which reveals that he did file a previous 2255 motion. Tellez's claim that his appellate attorney failed to advise him of his legal options also does not entitle him to equitable tolling. First, a "garden variety claim" of attorney negligence is not a sufficient basis for equitable tolling. See Holland v. ...