The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DIRECTING PETITIONER TO ADDRESS ISSUE OF TIMELINESS REGARDING HIS 28 U.S.C. § 2255 MOTION.
Petitioner Miguel Aviles-Gonzalez is a federal prisoner proceeding pro se pursuant to 28 U.S.C. § 2255 ("Section 2255") to vacate, set aside or correct a 46-month sentence imposed in connection with his guilty plea in this case. See Doc. 15 (Judgment and Commitment); Doc. 16 (Section 2255 Petition).
Under 28 U.S.C. § 2255(f)(1), a petitioner has one year from the date on which the judgment becomes final to file an appeal. If no appeal is taken, a district court's entry of judgment becomes final when the window for filing an appeal ends. U.S. v. Schwartz, 274 F.3d 1220, 1223 & n. 1 (9th Cir. 2001). Here, this Court's Judgment and Commitment was entered on June 15, 2011. Under Fed. R. App. P. 4(b), Defendant had fourteen days to file a notice of appeal. The docket demonstrates that no notice of appeal was filed. Thus, the one-year limitation period began to run fourteen days after the June 15, 2011 Judgment, or on June 29, 2011. The § 2255 motion indicates by Petitioner's own signature that it was delivered to prison authorities on July 31, 2012, more than one month after the one-year limitation period expired. Thus, the Petition is facially untimely.
The one-year limitation period may be tolled (i.e., paused or extended) when there is an impediment preventing a petitioner from filing a motion, new facts are discovered, or the Supreme Court recognizes a new right after judgment is entered. 28 U.S.C. § 2255(f). Alternatively, a § 2255 petitioner is entitled to "equitable tolling" if he can show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way," preventing timely filing." Holland v. Florida, ------ U.S. --------, 130 S. Ct. 2549, 2562, 177 L.Ed.2d 130 (2010); United States v. Buckles, 647 F.3d 883, 889 (9th Cir. 2011) (applying equitable tolling to § 2255 petition). Petitioner must also show that the extraordinary circumstances "were the cause of his untimeliness." Bryant v. Ariz. Att'y Gen., 499 F.3d 1056, 1061 (9th Cir. 2007).
Normally, a petitioner would address the issue of timeliness directly in his § 2255 motion, when answering Question #18 on the most recent § 2255 Motion form issued by the Administrative office of the U.S. Courts. (A copy of this form, AO 243, is attached to this order.) In this case, however, Petitioner appears to have utilized an outdated version of the § 2255 form that does not contain a question about timeliness. In an abundance of caution, Petitioner will be given an opportunity to directly address the issue of timeliness.
Petitioner is ordered to complete Question #18 on the attached § 2255 form and file his response to that question only (not to any other question on the form) with the Court on or before October 12, 2012. In addition to completing Question #18, Petitioner should fill out the identifying information on the first page of the form (above the heading "MOTION") and sign and date the last page of the form. The October 12 deadline is designed to provide more than ample time for Petitioner to receive this Order, respond to Question #18, and then return his response to the Court. Requests for extensions will not be granted without a strong showing of good cause.
Order Directing Petitioner to Address Issue of Timeliness Regarding His 28 U.S.C. § 2255 Motion
Motion to Vacate, Set Aside, or Correct a Sentence
By a Person in Federal Custody
(Motion Under 28 U.S.C. § 2255)
1. To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court. You are asking for relief from the conviction or the sentence. This form is your motion for relief.
2. You must file the form in the United States district court that entered the judgment that you are challenging. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file the motion in the federal court that entered that judgment.
3. Make sure the form is typed or neatly written.
4. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
5. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum.
6. If you cannot pay for the costs of this motion (such as costs for an attorney or transcripts), you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you.
7. In this motion, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different judge or division (either in the same district or in a different district), you must file a separate motion.
8. When you have completed the form, send the original and two copies to the Clerk of the United States District Court at this address:
United States District Court Eastern
Clerk, United States District Court for
District of California - Fresno Division 2500
9. CAUTION: You must include in this motion all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this motion, you may be barred from presenting additional grounds at a later date.
10. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.
MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
United States District Court District Name (under which you were convicted): Docket or Case No.:
Place of Confinement: Prisoner No.:
UNITED STATES OF AMERICA Movant (include name under which you were convicted)
1. (a) Name and location of court that entered the judgment of conviction you are challenging:
(b) Criminal docket or case number (if you know):
2. (a) Date of the judgment of conviction (if you know):
4. Nature of crime (all counts):
5. (a) What was your plea? (Check one)
(1) Not guilty (2) Guilty (3) Nolo contendere (no contest)
(b) If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, what did you plead guilty to and what did you plead not guilty to?
6. If you went to trial, what kind of trial did you have? (Check one) Jury Judge only
7. Did you testify at a pretrial hearing, trial, or post-trial hearing? Yes No
8. Did you appeal from the judgment of conviction? Yes No
9. If you did appeal, answer the following:
(b) Docket or case number (if ...