Opinion
12-cr-894-2 (RJS) 23-CV-544 (RJS)
01-30-2023
HECTOR EMILIO FERNANDEZ-ROSA, Movant, v. UNITED STATES OF AMERICA, Respondent, UNITED STATES OF AMERICA v. HECTOR EMILIO FERNANDEZ-ROSA, Defendant.
ORDER
RICHARD J. SULLIAN, CIRCUIT JUDGE:
Hector Emilio Fernandez-Rosa, currently incarcerated and proceeding pro se, moves the Court under 28 U.S.C. § 2255 to vacate or set aside his 2019 conviction and sentence for conspiracy to distribute and possess cocaine, in violation of 21 U.S.C. § 846. (Dkt. No. 23-CV-511, Doc. No. 1; Dkt. No. 12-cr-894, Doc. No. 93.) In connection with this section-2255 motion, Fernandez-Rosa also moves the Court for an evidentiary hearing and for the appointment of counsel. (Dkt. No. 12-cr-894, Doc. Nos. 91, 92.)
A review of the docket sheet in this matter suggests that Fernandez-Rosa's motion to vacate or set aside his sentence may be time-barred. A federal prisoner seeking relief under section 2255 must generally file a motion within one year from the latest of four dates: (1) when the judgment of conviction becomes final; (2) when a government-created impediment to making such a motion is removed; (3) when the right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on collateral review; or (4) when the facts supporting the claim(s) could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2255(f).
Under the “prison mailbox rule,” documents submitted by incarcerated litigants are deemed filed on the date that the litigant delivers the document to prison authorities for mailing. See Noble v. Kelly, 246 F.3d 93,97-98 (2d Cir. 2001).
On June 3, 2021, the Second Circuit affirmed Fernandez-Rosa's conviction. See United States v. Fernandez-Rosa, 849 Fed.Appx. 15, 16 (2d Cir. 2021). For purposes of section 2255's statute of limitations, his conviction therefore became final on September 1, 2021 - upon the expiration of the ninety-day period in which Fernandez-Rosa could have sought a writ of certiorari in the United States Supreme Court. See Clay v. United States, 537 U.S. 522 (2003); see also S.Ct. R. 13(1) (establishing 90-day period for filing petition for a writ of certiorari), Fernandez-Rosa therefore had one year from that date - that is, until September 1, 2022 - to file a timely section-2255 motion. Fernandez-Rosa placed his motion into the prison mail system on October 30,2022,' approximately one month and twenty-nine days after the expiration of the one-year deadline.
Accordingly, IT IS HEREBY ORDERED THAT Fernandez-Rosa shall file a declaration by March 30, 2023 showing cause why his motion under 28 U.S.C. § 2255 should not be denied as time-barred. For Fernandez-Rosa's convenience, a declaration form is attached to this order. If Fernandez-Rosa files a declaration within the time allowed, the Court will review it, and if proper, will order that the motion be served on the government. If Fernandez-Rosa fails to comply with this Order, his motion under 28 U.S.C. § 2255 will be denied as time-barred. No answer will be required from the government at this time.
The Clerk of Court is respectfully directed to mail a copy of this Order to Hector Emilio Fernandez-Rosa, BOP ID # 92339-054, at either USP Terre Haute, P.O. Box 33, Terre Haute, IN 47808, or at any BOP institution to which Fernandez-Rosa should be subsequently transferred.
SO ORDERED.