Opinion
00 Civ. 0406 (LLS); S1 95 Cr. 524-02 (LLS)
February 2, 2000
MEMORANDUM ENDORSEMENT
Jenny Cruz moves under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence, imposed by this court on May 30, 1997. On June 12, 1997 she filed an appeal, which she voluntarily withdrew on October 8, 1997. Because of this withdrawal, judgment in her case became final on October 8, 1997. Since Ms. Cruz did not file her § 2255 motion until December 9, 1999, her petition is untimely. 28 U.S.C. § 2255 imposes a one-year period of limitation on motions under that section, running from ". . . the date on which the judgment of conviction becomes final." Id. Since Ms. Cruz's motion was not filed until over two years after her conviction became final, it is time-barred.
Even if her motion were not time-barred, the court has reviewed her petition on its merits, and finds no ground for granting a writ of habeas corpus. There was no error in denying Ms. Cruz a downward adjustment to her sentence for acceptance of responsibility, because she chose to go to trial, and that decision was not to preserve any point of principle. "This adjustment [§ 3E1.1 of the Sentencing Guidelines] is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse." Application Note 2 to U.S. SENTENCING GUIDELINE MANUAL § 3E1.1 (1995).
Although Ms. Cruz alludes to a lack of jurisdiction, she does not develop that point, and no lack of jurisdiction is apparent.
Ms. Cruz's final point is that the court failed to make written findings concerning her objections to the presentence report. At the sentencing hearing, the court heard each side with respect to the only objection Ms. Cruz made (that she should receive a downward adjustment for her role in the offense, i.e., the relevant quantity of drugs) and ruled on it in factual detail (Sentencing Tr. at 13-15). All that Fed.R.Crim.P. 32(c)(1) requires is that there be a written record of the those findings made available to the Bureau of Prisons. Ms. Cruz has the written transcript of the sentencing hearing, which she has cited in her brief.
Ms. Cruz's motion to vacate, set aside, or correct her sentence is denied. The court will not issue a certificate of appealability, since the motion is time-barred, and lacks any merit.
So ordered.