Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Brown

United States District Court, Ninth Circuit

January 16, 2014

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
HERMAN JAMES BROWN, Defendant/Movant.

ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT A SENTENCE (28 U.S.C. § 2255)

ROGER T. BENITEZ, District Judge.

Now before the Court is Defendant/Movant Herman James Brown's ("Movant") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Because the motion is barred by the statue of limitations, the motion is denied.

RELEVANT BACKGROUND

On March 29, 2009, Movant drove across the California-Mexico border into the United States at the Port of Entry in Calexico, California. The border inspectors found methamphetamine hidden in his vehicle. As a result, a federal grand jury indicted Movant for violations of 21 U.S.C. §§ 952 and 960, and 21 U.S.C. § 841(a)(1). On September 9, 2009, Movant pled guilty pursuant to a written plea agreement to the first count under 21 U.S.C. §§ 952 and 960.

On February 11, 2010, this Court imposed a sentence of 87 months in prison. Movant did not appeal. On June 6, 2011, Movant filed his §2255 motion. Respondent filed its opposition raising the statute of limitations bar.

I. THE STATUTE OF LIMITATIONS

The Court finds that the motion is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2255(f). Although Movant describes in his motion the more relaxed standard of the former Rule 9 of the Rules Governing §2255 Proceedings, which applied prior to 1996, both Rule 9 and §2255 have since been amended. Section 2255 now incorporates a one-year period of limitations within which the motion must be filed. Section 2255(f) of title 28 of the United States Code provides in relevant part,

A 1-year period of limitation shall apply to a motion under this section. 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 the 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 Court entered judgment on February 11, 2010. Because no appeal was filed, the judgment became final on February 25, 2010. When the instant motion was filed on June 6, 2011, more than one year had passed.

The Court further notes Petitioner has not alleged an impediment was created by governmental action or that his attempts to file the § 2255 motion were otherwise impeded. Likewise, Petitioner has not asserted a right that has been recently recognized by the Supreme Court and is applied retroactively. And Petitioner does not contend that the facts supporting his claim were not available to him at the time of sentencing or that he could not have discovered those facts through due diligence. Therefore, there is no justification for applying a later starting date for the one-year statute ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.