Opinion
Case No. 07-cv-4081.
April 3, 2008
ORDER
Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed by Petitioner, Angulo Concepcion Gastelum, on December 10, 2007 [Doc. 1] and the Motion to Dismiss filed by Respondent, United States of America, on January 28, 2008 [Doc. 4]. For the reasons that follow, the Motion to Vacate is DENIED and the Motion to DISMISS is GRANTED.
BACKGROUND
On June 1, 2006, Petitioner pled guilty to unlawful re-entry after deportation, in violation of 8 U.S.C. § 1326. He was sentenced on September 8, 2006 to 46 months incarceration. Judgment was duly entered on September 11, 2006. No direct appeal was filed.
Petitioner filed his Motion to Vacate, Set Aside, or Correct Sentence on December 10, 2007 (it was signed on December 4, 2007). Petitioner alleges that his attorney rendered ineffective assistance of counsel in sentencing. Specifically, Petitioner asserts that he was entitled to a downward departure of his sentence for a number of reasons which need not be repeated here.
Respondent filed a Motion to Dismiss arguing that the Petition is untimely. Petitioner failed to timely respond to the Motion to Dismiss. On March 12, 2008, this Court granted Petitioner until March 31, 2008 to respond to the Motion to Dismiss. Petitioner was also specifically warned that the failure to respond may result in the dismissal of his Petition. No response has been filed as of the date of this Order.
DISCUSSION
Title 28 U.S.C. § 2255(f)(1) contains a 1 year limitations period from the "date on which the judgment of conviction becomes final." See also Robinson v. United States, 416 F.3d 645, 647 (7th Cir. 2005). Judgment in this case was entered on September 11, 2006, and became final after the time for filing an appeal expired, 10 days thereafter. Federal Rule of Appellate Procedure 4(b)(1)(A). Petitioner has not asserted that the limitations period should be tolled. See Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004). As such, the Petition should have been filed by September 25, 2007. The Petition was not mailed until December 4, 2007; therefore, it is untimely and must be dismissed.
There is no showing that the other dates identified in § 2255(f) apply to this case.
CONCLUSION
For the foregoing reasons, the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed by Petitioner, Angulo Concepcion Gastelum, on December 10, 2007 [Doc. 1] is DISMISSED and the Motion to Dismiss filed by Respondent, United States of America, on January 28, 2008 [Doc. 4] is GRANTED.
CASE TERMINATED