Felix v. USA

Filing 2

ORDER requesting response. Signed by Judge Ronald M Whyte on June 19 2014. (rmwlc2, COURT STAFF) (Filed on 6/19/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

SAN JOSE DIVISION
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UNITED STATES OF AMERICA,
Plaintiff/Respondents,

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Case No. 14-CV-00408-RMW
Related to CR-07-00106-RMW-2

v.
NOTICE OF MOTION FOR REVIEW
UNDER 28 U.S.C. § 2255; REQUEST
FOR RESPONSE

FRANCISCO TORRES FELIX,
Defendant/Movant.

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Defendant Francisco Torres Felix moves to set aside his conviction pursuant to 28 U.S.C.

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§ 2255 on the basis that (1) his sentence was imposed in violation of the right to a speedy trial and

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(2) he was deprived of effective assistance of counsel.

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A. Background

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Felix was convicted of gun and drug charges following his guilty plea. Judgment was

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entered on November 24, 2009. Dkt. No. 136. 1 Felix appealed and his conviction and sentence was

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affirmed on March 4, 2011. Dkt. No. 184.
On February 27, 2012 Felix filed a “Motion to Reduce Sentence” on the basis that the court

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did not consider him for a “fast track deportation,” which the court denied. Dkt. Nos. 186, 189.

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The docket numbers refer to the criminal case, CR-07-00106.

Case No. 14-CV-00408-RMW
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On January 27, 2014 Felix filed his current motion to vacate his sentence pursuant to § 2255.

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Felix’s petition was filed more than one year after his conviction became final. See Dkt. No.

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184 (March 4, 2011 Order of Court of Appeals, plus 90 days to file a petition for writ of certiorari)

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and Dkt. No. 195 (§ 2255 Motion filed January 27, 2014); Clay v. United States, 537 U.S. 522, 525

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(2003). However, the statute of limitations for § 2255 proceedings is subject to equitable tolling.

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See, e.g., United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004). Felix alleges that his petition

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was delayed because he was not informed of the one-year limitation by his appellate counsel, he is

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not able to read and write in English, and it took over a year to obtain the records in his case and

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develop his arguments. Dkt. No. 195 at 15-16. The court expresses no opinion at this time on

United States District Court
For the Northern District of California

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whether these circumstances may qualify for tolling.
Felix seeks relief from his incarceration and raises the following violations of his federal

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rights: (1) Sixth Amendment right to a speedy trial; (2) violation of the Speedy Trial Act; and (3)

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ineffective assistance of counsel. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings,

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the United States Attorney is to file an answer, motion, or other response by July 13, 2014.

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ORDER

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Respondent is ordered to file an answer, motion, or other response by July 13, 2014.

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Movant has thirty days following the government’s service of its response to reply to the

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government’s filing. The Clerk of Court shall serve a copy of this order and the motion and all

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attachments thereto upon the United States Attorney’s Office for the Northern District of California

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and send a copy to movant.

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IT IS SO ORDERED.

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Dated: June 19, 2014

_________________________________
Ronald M. Whyte
United States District Judge

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Case No. 14-CV-00408-RMW
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