Flores-Ruiz v. U.S.

Full title: GASPER FLORES-RUIZ, Plaintiff, v. U.S., Defendant

Court: United States District Court, D. Utah, Central Division

Date published: Jun 18, 2004

Case No. 2:04 CV 343 TC (D. Utah Jun. 18, 2004)

Opinion

Case No. 2:04 CV 343 TC.

June 18, 2004

ORDER

TENA CAMPBELL, District Judge

Background

Mr. Flores-Ruiz filed a petition pursuant to 28 U.S.C. § 2255. Mr. Flores-Ruiz lists three grounds for his § 2255 petition, but the first two are essentially the same — both argue that the court incorrectly sentenced Mr. Flores-Ruiz. (Mr. Flores-Ruiz's Petition at 1-4.) Mr. Flores-Ruiz also claims ineffective assistance of counsel, apparently because his counsel did not bring to the court's attention the fact that the government recommended that Mr. Flores-Ruiz be sentenced at the low end of the applicable guideline range. (Id. at 4-5.)

Discussion

Mr. Flores-Ruiz's § 2255 motion must be denied because it is time barred. Under 28 U.S.C. § 2255(1), Mr. Flores-Ruiz had one year from "the date on which the judgment of conviction bec[ame] final" to file his petition. For purposes of § 2255 review, a judgment becomes final on the date that the Supreme Court affirms the petitioner's conviction, denies a petition for certiorari, or the time for certiorari review has passed. See, e.g., Green v. U.S., 260 F.3d 78, 84 (2d Cir. 2001) (conviction becomes final when United States Supreme Court denies petition for certiorari); Kapral v. U.S., 166 F.3d 565, 570 (3d Cir. 1999) (conviction becomes final when United States Supreme Court affirms the defendant's conviction, denies a timely certiorari petition, or the time for certiorari review has passed).

Here, Mr. Flores-Ruiz's judgment and conviction was entered on January 9, 2003. (U.S.A. v. Flores-Ruiz, 2:03CR569TC (D. Utah, Jan. 9, 2003) (docket number 17, judgment of conviction).) Under Federal Rule of Appellate Procedure 4(b), Mr. Flores-Ruiz had ten days from January 9, 2003, (excluding weekends and holidays), or — until January 24, 2003 — to appeal his conviction. He did not, however, appeal, and the opportunity for certiorari review expired. As a result, the one year time period for Mr. Flores-Ruiz's § 2255 petition began to run on January 25, 2003.

Mr. Flores-Ruiz, however, did not file the current petition until April 19, 2004, almost three months after the expiration of the one year time period on January 26, 2004. (Mr. Flores-Ruiz's Petition at 1 (showing received date of April 19, 2004).) Accordingly, because Mr. Flores-Ruiz did not file his petition within one year of judgment being entered in the case, and he provided no reason for his failure to do so, his petition is barred, and must be denied.

ORDER

For the foregoing reasons, the § 2255 Motion is DENIED.