Opinion
Case No. CR01-5195RBL.
June 23, 2009
ORDER
THIS MATTER comes on before the above-entitled Court upon Defendant's "Motion for Time Reduction by an Inmate in Federal Custody Under Title 28 U.S.C. § 2255." [Dkt. #76]. Having considered the entirety of the records and file herein, the Court finds and rules as follows:
On September 7, 2001 the defendant was sentenced to 135 months in custody based upon his plea of guilty to Count II of an Indictment charging him with distribution of cocaine. On November 21, 2002, the defendant was re-sentenced after remand to the same sentence. By way of a motion the defendant attempts to bring under 28 U.S.C. § 2255, the defendant seeks a reduction in his sentence because as an alien he does not get the benefit of time off his sentence for participating in drug programming, is not allowed a UNICOR job, and is not eligible for half-way house placement. He argues that because United States citizens are afforded these benefits, denying the benefits to aliens violates due process under the Fifth Amendment and equal protection under the Fourteenth Amendment.
This Court is without power to grant the defendant the relief he seeks. If the defendant is seeking a reconsideration of his sentence, Fed.R.Crim.P. 35 no longer affords this Court the ability to reduce a defendant's sentence absent a motion from the government. If the defendant is seeking relief under 28 U.S.C. § 2255, the one-year statute of limitations contained in 28 U.S.C. § 2255(f) has long since run. Defendant's motion is DENIED.
The Court is of the opinion that this motion is not cognizable under 28 U.S.C. § 2255.
IT IS SO ORDERED.
The Clerk shall send uncertified copies of this order to all counsel of record, and to any party appearing pro se.