Juan Aparicio-Lopez v. United States of America

Filing 4

MINUTE ORDER IN CHAMBERS by Judge A. Howard Matz. The Court hereby GRANTS the government's motion to dismiss Defendant Juan Aparicio-Lopez's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §2255. The Court DISMISSES Aparicio-Lopez's motion as untimely and GRANTS the government's motion to dismiss. (Made JS-6. Case Terminated.) (kbr)

O; JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-10385 AHM
CR 08-1281 AHM

Title

JUAN APARICIO-LOPEZ v. UNITED STATES OF AMERICA

Present: The
Honorable

Date

March 13, 2013

A. HOWARD MATZ, U.S. DISTRICT JUDGE

Stephen Montes

Not Reported

Deputy Clerk

Court Reporter / Recorder

Attorneys NOT Present for Plaintiffs:

Proceedings:

Tape No.

Attorneys NOT Present for Defendants:

IN CHAMBERS (No Proceedings Held)

The Court hereby GRANTS the government’s motion to dismiss1 Defendant Juan
Aparicio-Lopez’s motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C.
§ 2255.2

After this Court denied a motion to suppress evidence of narcotics uncovered in a
traffic stop, Aparicio-Lopez pled guilty to one count of possession of a controlled
substance with intent to distribute. The Court subsequently sentenced Aparicio-Lopez to
120 months’ imprisonment. The Ninth Circuit affirmed his conviction and sentence on
appeal, and on October 3, 2011, the Supreme Court denied his petition for a writ of

1

CR 08-1281 Dkt. 65. The government’s motion was filed January 14, 2013. Aparicio-Lopez
has not responded to that motion.
2

CR 08-1281 Dkt. 62; CV 12-10385 Dkt. 1.

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O; JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-10385 AHM
CR 08-1281 AHM

Date

Title

March 13, 2013

JUAN APARICIO-LOPEZ v. UNITED STATES OF AMERICA

certiorari. United States v. Aparicio-Lopez, 425 F. App’x 655 (9th Cir. 2011), cert.
denied, 132 S. Ct. 238 (2011). On December 5, 2012, Aparicio-Lopez filed the instant
motion, asserting that his trial counsel was ineffective.

A one-year statute of limitations applies to motions filed under § 2255. The
limitation period runs from the latest of:

1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution of law of the
United States is removed, if the movant was prevented from making a
motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
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O; JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-10385 AHM
CR 08-1281 AHM

Date

Title

March 13, 2013

JUAN APARICIO-LOPEZ v. UNITED STATES OF AMERICA

(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.

§ 2255(f). Aparicio-Lopez does not assert that any of the grounds enumerated in
subsections (2)-(4) apply. Accordingly, the one-year limitations period began running
when the Supreme Court denied his petition for certiorari on October 3, 2011. See Clay v.
United States, 537 US. 522, 532 (2003) (holding that a conviction becomes “final” under
§ 2255(f)(1) when the Supreme Court denies certiorari). As such, Aparicio-Lopez’s
motion, which was filed on December 5, 2012, is untimely.3

Although equitable tolling may sometimes excuse the untimely filing of a § 2255
motion, see United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004), AparicioLopez has not demonstrated that he is entitled to that relief. Aparicio-Lopez alleges that
prison law library clerks informed him that he did not have to file the motion until

3

Application of the so-called “mailbox rule” would not save Aparicio-Lopez’s petition, because
the petition is dated November 20, 2012. See, e.g., Noble v. Adams, 676 F.3d 1180, 1182 (9th Cir.
2012). Even if it was mailed that day, that would have been more than a month after the limitations
period expired.
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O; JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-10385 AHM
CR 08-1281 AHM

Date

Title

March 13, 2013

JUAN APARICIO-LOPEZ v. UNITED STATES OF AMERICA

January 28, 2013, but this alleged misadvice does not entitle him to equitable tolling of
his motion. The Ninth Circuit has made clear that erroneous advice regarding the
limitations period “do[es] not constitute extraordinary circumstances sufficient to warrant
equitable tolling.” See Miranda v. Castro, 292 F.3d 1063, 1067-68 (9th Cir. 2002); see
also Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001).

Accordingly, the Court DISMISSES Aparicio-Lopez’s motion as untimely and
GRANTS the government’s motion to dismiss.

No hearing is necessary. Fed. R. Civ. P. 78; L.R. 7-15.

:
Initials of Preparer

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