The opinion of the court was delivered by: Present: The Honorable A. Howard Matz, U.S. District Judge
Stephen Montes Not Reported
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys NOT Present for Plaintiffs: Attorneys NOT Present for Defendants:
Proceedings: IN CHAMBERS (No Proceedings Held)
The Court hereby DISMISSES as untimely Defendant Janie Marie Pinedo's motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255.*fn1
Pinedo was indicted on five charges including possession of narcotics, identity theft, and bank fraud. She pled guilty to some of the charges. She went to trial, however, on a methamphetamine charge and was convicted by the jury. On September 20, 2010, the Court sentenced Pinedo to 84 months' imprisonment and ordered her to pay $59,998.99 in restitution. Pinedo did not appeal her convictions or sentence. On July 31, 2012, she filed the instant motion pro se, alleging ineffective assistance of counsel in the plea bargaining process.
A one-year statute of limitations applies to petitions filed under § 2255. The limitation period runs 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 of law 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 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.
§ 2255(f). Because Pinedo did not appeal her conviction or sentence, her conviction became final when the time to file an appeal expired. United States v. Colvin, 204 F.3d 1221, 1224 (9th Cir. 2000) ("[A] judgment cannot be considered final as long as a defendant may appeal either the conviction of sentence."). A notice of appeal in a criminal case must be filed within fourteen days of the district court's entry of judgment. Fed. R. App. P. 4(b)(1)(A). This Court entered judgment on September 24, 2010, see 09-CR-00719-AHM (Dkt. 102),and thus her conviction became final on October 8, 2010.
Because her conviction became final well over a year before she filed her § 2255 petition on July 31, 2012, Pinedo's petition is untimely unless one of the alternative accrual dates in § 2255(f)(2)-(4) applies. Pinedo's submissions do not specifically reference these provisions, and she makes no allegations of impediments to filing or to newly discovered facts. She does, however, does argue that relief is warranted under a recent Supreme Court case, Lafler v. Cooper, 132 S. Ct. 1376 (2012), which was issued on March 12, 2012, along with its companion case Missouri v. Frye, 132 S. Ct. 1399 (2012). In Lafler and Frye, the Supreme Court ruled that an attorney's incorrect advice leading to the defendant's rejection of a favorable plea offer could ...