United States District Court, S.D. California
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. § 255.
Dana M. Sabraw United States District Judge.
before the Court is Petitioner Gino Paul Pietro's Motion
to Vacate, Set Aside or Correct Sentence Under 28 U.S.C.
§ 2255. Respondent United States of America filed an
opposition to the motion, and Petitioner filed a reply. For
the reasons set out below, the motion is denied.
10, 2014, an information was filed, charging Petitioner with
one count of wire fraud, in violation of 18 U.S.C. §
1343. On the same day, Petitioner pleaded guilty to one count
of wire fraud. On July 24, 2015, the Court sentenced
Petitioner to a total of 10 months, consisting of 6 months to
run consecutive to the sentence imposed by the United States
District Court for the Central District of California
(“CDCA”) in case number 14CR0019-AG and 4 months
to run concurrent. Subsequently, on July 31, 2015, the Court
issued a judgment. On August 15, 2016, Petitioner filed the
motion, Petitioner argues he received ineffective assistance
of counsel in violation of the Sixth Amendment because his
trial counsel: (1) failed to advocate on his behalf, (2)
forced him to plead guilty, (3) misinformed him that his
sentence would run concurrent to the sentence imposed by the
CDCA, (4) failed to discuss the plea agreement with
Petitioner, (5) failed to assure there was an adequate
factual basis for his guilty plea, and (6) had an actual
conflict of interest.
prisoner in custody may move the federal court that imposed a
sentence upon him to vacate, set aside, or correct that
sentence on the ground that:
the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack[.]
28. U.S.C. § 2255(a). If the court determines that
relief is warranted under § 2255, it must “vacate
and set the judgment aside” and “discharge the
prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate.” Id.
at § 2255(b).
Timeliness of the Motion
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) provides a one-year statute of
limitations for a federal prisoner to file a motion to
vacate, set aside, or correct a sentence pursuant to 28
U.S.C. § 2255. See 28 U.S.C. § 2255(f).
The one-year limitations period generally begins to run on
“the date on which the judgment of conviction becomes
final[.]” Id. at § 2255(f)(1). For
purposes of a § 2255 motion, a judgment becomes final
and the limitations period begins to run “upon the