Opinion
Nos. 4:02-CR-209-A, 4:05-CV-182-A.
March 29, 2005
MEMORANDUM OPINION and ORDER
Came on to be considered the motion of Jose Bernabe Yanez-Bustos ("Yanez"), under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. Having reviewed the motion, the court concludes that the it should be dismissed as time-barred.
A motion under § 2255 must be brought within a one-year limitation period. 28 U.S.C. § 2255. The limitation period runs from the latest of:
(1) the date on which the judgment of conviction becomes final; [or]
. . .
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.Id. at ¶ 6 (1) (4).
The limitation period may also run from the date on which an unconstitutional government-created impediment to making a motion is removed or from the date on which a right is newly recognized by Supreme Court and made retroactively applicable to collateral review. 28 U.S.C. § 2255 ¶ 6(2) (3). Nothing in Yanez's motion indicates that either limitation period is applicable.
Judgment was entered against Yanez on May 13, 2005, meaning his conviction became final on June 12, 2003, when the time for the filing a direct appeal expired. See Fed.R.App.P. 4(b). Because Yanez filed his § 2255 motion on March 17, 2005, more than one year after his conviction became final, his motion is untimely under the first relevant limitation period. Id. at ¶ 6(1).
Although a motion under § 2255 is deemed filed on the date a prisoner delivers it to prison officials, see United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000), the Yanez's motion does not include a certificate of service.
Yanez's motion is also time-barred under the second relevant limitation period. Id. at ¶ 6(4). The ground's for his motion are that his appointed counsel failed to file an appeal and that his right against double jeopardy was violation when he received a sentence enhancement for an already-served sentence. It is clear that the facts supporting both grounds could have been discovered through the exercise of reasonable diligence more than one year prior to March 17, 2005, when he filed his § 2255. Therefore, Yanez's motion is untimely under either relevant one-year limitation period. Accordingly,
The court ORDERS that the above-described motion be, and is hereby, dismissed as time-barred.