United States District Court, Eastern District of California
ORDER RE PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (Doc. 35)
LAWRENCE J. O'NEILL UNITED STATES DISTRICT JUDGE
Petitioner Carlos Medina ("Petitioner"), a federal prisoner, moves under 28 U.S.C. § 2255 ("§ 2255") to vacate and set aside his sentence of conviction. Doc. 35 at 36. Petitioner claims that his trial counsel in this action rendered ineffective assistance by failing to object to this Court's allegedly incorrect calculation of his criminal history for sentencing purposes. See Id. at 26-27. For the reasons discussed below, Petitioner's motion is DISMISSED as untimely.
II. FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 2007, Petitioner pled guilty to one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Doc. 17 at 2. As part of his plea agreement, Petitioner waived his "right to appeal his conviction or any sentence, " as well as his "right to challenge his conviction, sentence or the manner in which it was determined in any post-conviction attack, including but not limited to a motion brought under [§ 2255]." Id. at 4.
On December 3, 2007, Petitioner was sentenced to 131 months imprisonment to be served consecutively. Doc. 21; Doc. 23 at 2. Judgment of the conviction was entered on December 6, 2007. Doc. 23 at 1. Petitioner did not appeal his sentence. Doc. 35 at 2.
On December 31, 2014, Petitioner filed his § 2255 motion. Doc. 35. Petitioner contends that his trial counsel "was ineffective for failing to correctly calculate [his] sentencing guidelines range and for failing to object to the U.S. Probation Department and the district court's inaccurate calculation of his Criminal History Category." Id. at 4.
Generally, a federal prisoner who seeks to challenge the legality of his conviction and sentence must rely on a motion to vacate, set aside or correct his sentence pursuant to § 2255. Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). The aim of Petitioner's motion is to challenge the legality of his conviction and sentence. The Court advises Petitioner that a § 2255 motion has a one-year statute of limitations period. This 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 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 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. 28 U.S.C. section 2255
Because Petitioner's conviction and sentence became final on December 6, 2007, Petitioner must demonstrate that the one-year limitations period on the claims for relief asserted in his § 2255 motion has not expired. Petitioner, however, acknowledges that the one-year statute of limitations has expired. See Doc. 35 at 21 (Petitioner recognizing that, "[o]rdinarily, a § 2255 motion ...