United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MARK E. ASPEY, Magistrate Judge.
On July 14, 2014, Movant, who is currently incarcerated in Texas, docketed a motion seeking to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. Respondent docketed a response (Doc. 4) to the motion on February 4, 2015, arguing that the motion is barred by the statute of limitations. Movant's reply to the response to his motion was due March 11, 2015.
I Procedural Background
A federal grand jury indictment returned September 4, 2012, charged Movant with four felony counts, i.e., bringing aliens into the United States, harboring aliens, conspiracy to transport aliens, and illegal reentry after deportation. See Criminal Doc. 7.
On March 7, 2013, pursuant to a written plea agreement (Criminal Doc. 31), Movant pled guilty to one count of bringing illegal aliens into the United States, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). See Criminal Docs. 25 & 27. The written plea agreement provided that the sentencing range for this crime was a minimum sentence of three years and a maximum sentence of ten years imprisonment, followed by three years of supervised release. See Criminal Doc. 31. On May 24, 2013, Movant was sentenced to a term of 36 months of imprisonment followed by three years of supervised release. See Criminal Docs. 32 & 33. At Movant's sentencing, pursuant to the terms of the plea agreement, the three remaining counts of the indictment were dismissed. See Criminal Doc. 33. Judgment was entered May 28, 2013. See Criminal Doc. 33.
On July 10, 2014, Movant initiated this section 2255 action and also filed a notice of appeal with regard to the judgment entered May 28, 2013. See Criminal Doc. 37 & Criminal Doc. 38. The appeal was dismissed by the Ninth Circuit Court of Appeals on December 9, 2014, because it was not timely filed. See Criminal Doc. 42 & Criminal Doc. 43.
In his section 2255 motion (Doc. 1) Movant contends his guilty plea was not knowing and voluntary because his trial counsel did not properly advise him of his "Boykin" rights. Movant also alleges he was not properly advised, pursuant to Rule 11, Federal Rules of Criminal Procedure, of the rights he was waiving by entering a guilty plea. Movant further asserts that his trial counsel's performance was unconstitutionally ineffective because there was no factual basis for Movant's guilty plea and because there was insufficient evidence to support his conviction. Movant also argues he is entitled to relief because his appellate counsel failed to take a timely direct appeal of Movant's conviction and sentence.
A. Statute of limitations
Section 2255 provides, inter alia:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from... the date on which the judgment of conviction becomes final.... [or] the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review...
Judgment was entered against Movant on May 28, 2013. The plea agreement signed by Movant waived his right to take a direct appeal of his conviction and sentence. Notwithstanding this waiver, Movant's conviction and sentence became final fourteen days later, on June 11, 2013, when the time for filing an appeal of his conviction and sentence expired. See Fed. R. App. P. 4(b)(1)(A); Clay v. United States, 537 U.S. 522, 527-28, 123 S.Ct. 1072, 1076-77 (2003); United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (finding that the statute of limitations begins to run "upon the expiration of the time during which [the petitioner] could have sought review by direct appeal"); Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011); Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005); Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (concluding that, under the old Rule 4, "an unappealed federal criminal judgment becomes final ten days after it is entered").
Accordingly, Movant had until June 11, 2014, to file his section 2255 motion. Because Movant's section 2255 action was not filed until July 10, 2014, it is barred by the applicable statute of limitations.
The one-year deadline imposed by the Anti-Terrorism and Effective Death Penalty Act on the filing of section 2255 motions is, in effect, a statute of limitations subject to equitable tolling. See United ...