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Juan Aparicio-Lopez v. United States of America

March 13, 2013

JUAN APARICIO-LOPEZ
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: The Honorable A. Howard Matz, U.S. District Judge

CIVIL MINUTES - GENERAL

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 GRANTS the government's motion to dismiss*fn1 Defendant Juan Aparicio-Lopez's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.*fn2

After this Court denied a motion to suppress evidence of narcotics uncovered in a traffic stop, Aparicio-Lopez pled guilty to one count of possession of a controlled substance with intent to distribute. The Court subsequently sentenced Aparicio-Lopez to 120 months' imprisonment. The Ninth Circuit affirmed his conviction and sentence on appeal, and on October 3, 2011, the Supreme Court denied his petition for a writ of certiorari. United States v. Aparicio-Lopez, 425 F. App'x 655 (9th Cir. 2011), cert. , 132 S. Ct. 238 (2011). On December 5, 2012, Aparicio-Lopez filed the instant motion, asserting that his trial counsel was ineffective.

A one-year statute of limitations applies to motions 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). Aparicio-Lopez does not assert that any of the grounds enumerated in subsections (2)-(4) apply. Accordingly, the one-year limitations period began running when the Supreme Court denied his petition for certiorari on October 3, 2011. See Clay v. United States, 537 US. 522, 532 (2003) (holding that a conviction becomes "final" under § 2255(f)(1) when the Supreme Court denies ...


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