Opinion
NO. CR-09-6008-WFN.
April 19, 2011
ORDER
Before the Court is Defendant's pro se Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255, filed November 12, 2010 (ECF No. 38).
I. BACKGROUND
Mr. Corona was indicted on February 10, 2009, for being an alien in the United States after deportation in violation of 8 U.S.C. § 1326. He pled to Count 1 on April 8, 2009 (ECF No. 28). In his Plea Agreement, Mr. Corona agreed to "waive any right to appeal this conviction and the sentence," as well as "any right to collaterally attack this conviction and sentencing under 28 U.S.C. § 2255". (ECF No. 29) On May 19, 2009, this Court sentenced him to 33 months of incarceration pursuant to the fast track program. (ECF No. 35) The time for appeal runs for 14 days, so judgment was final on May 24, 2009.
III. DISCUSSION
The Court entered an Order requesting that Mr. Corona justify his untimely submission. (ECF No. 39) Mr. Corona provided a response wherein he indicates that "when he discovered the counsel's failure it could be in time, but he was segregated by the Bureau of Prisons. . . ." (ECF No. 40) The Court issued another Order finding that Mr. Corona's untimely submission could not be justified by 28 U.S.C. § 2255(f)(4), but requested that Mr. Corona submit additional information so the Court could make a determination whether equitable tolling would apply. (ECF No. 41) The Court set a deadline of March 23, 2011. The Court warned that failure to file the requested supplement would result in dismissal of this § 2255 Motion with prejudice. (ECF No. 41) Mr. Corona did not file the requested supplement.
Without facts supporting Mr. Corona's assertion that the statute of limitations should be tolled, the Court finds that the statute of limitations applies in this case and that Mr. Corona's § 2255 Motion should be dismissed with prejudice because it is untimely.
III. CERTIFICATE OF APPEALABILITY
An appeal of this Order may not be taken unless this Court or a Circuit Justice issues a certificate of appealability, finding that "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (West 2004). This requires a showing that "reasonable jurists would find the district Court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. A certificate of appealability should not be granted unless both components, one directed at the underlying constitutional claims, and the second directed at the court's procedural holding, are satisfied. Id.
Based on the Court's preceding analysis, the Court concludes jurists of reason would not find the Court's statute of limitations ruling debatable. Thus, a certificate of appealability should not issue. Accordingly, IT IS ORDERED that Movant's pro se Motion to Vacate, Set Aside, or Correct Sentence, filed November 12, 2010, ECF No. 38, is DENIED WITH PREJUDICE.
The District Court Executive is directed to:
• File this Order and provide copies to pro se Movant and to the United States Attorney in Spokane, Washington;
• Inform the Ninth Circuit Court of Appeals that if the Movant files a Notice of Appeal that a certificate of appealability is DENIED; and
• CLOSE the corresponding civil file, CV-10-5134-WFN.