Opinion
CASE NO. 03cr3401-IEG.
May 4, 2009
Order Granting Motion for Reconsideration; Directing Clerk to file Motion to Vacate Under 28 U.S.C. § 2255
Defendant Rogelio Vargas Galicia previously filed a motion requesting a 90-day extension of the one-year statutory time period within which he must file a petition under 28 U.S.C. § 2255. By order filed April 1, 2009, the Court denied Defendant's motion, finding that the motion itself was filed beyond the one year statute of limitations.
Defendant has filed a motion for reconsideration, arguing the Court miscalculated the time period for him to file his motion under § 2255. In addition, Defendant has mailed to the Court a motion seeking relief under § 2255. Upon review, the Court GRANTS Defendant's motion for reconsideration, and directs the Clerk to file Defendant's motion for relief under § 2255.
The Court's April 1, 2009 order assumed that Defendant's counsel did not file a petition for a writ of certiorari to the United States Supreme Court following the Ninth Circuit's denial of his direct appeal. As such, the Court determined the time for Defendant to file a motion under § 2255 began to run 90 days after the Ninth Circuit's November 8, 2007 judgment affirming the conviction, and expired on February 6, 2009. In support of his current motion, however, Defendant provides a copy of a letter from his attorney, dated April 25, 2008, indicating that the U.S. Supreme Court had denied his petition for a writ of certiorari and that Defendant must file any motion under 28 U.S.C. § 2255 by April 21, 2009. Defendant mailed his motion for relief under 28 U.S.C. § 2255 on April 20, 2009. Therefore, it appears such motion was timely filed.
The Defendant's motion for reconsideration is GRANTED. The Clerk is directed to file Defendant's motion. This order is without prejudice to the government's right to raise an issue as to the timeliness of the motion in its response.
IT IS SO ORDERED.