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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California SAN JOSE DIVISION 11 12 UNITED STATES OF AMERICA, Plaintiff/Respondents, 13 14 15 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. 16 17 18 Defendant Francisco Torres Felix moves to set aside his conviction pursuant to 28 U.S.C. 19 20 § 2255 on the basis that (1) his sentence was imposed in violation of the right to a speedy trial and 21 (2) he was deprived of effective assistance of counsel. 22 A. Background 23 Felix was convicted of gun and drug charges following his guilty plea. Judgment was 24 entered on November 24, 2009. Dkt. No. 136. 1 Felix appealed and his conviction and sentence was 25 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 26 27 did not consider him for a “fast track deportation,” which the court denied. Dkt. Nos. 186, 189. 28 1 The docket numbers refer to the criminal case, CR-07-00106. Case No. 14-CV-00408-RMW LM -1- 1 On January 27, 2014 Felix filed his current motion to vacate his sentence pursuant to § 2255. 2 Felix’s petition was filed more than one year after his conviction became final. See Dkt. No. 3 184 (March 4, 2011 Order of Court of Appeals, plus 90 days to file a petition for writ of certiorari) 4 and Dkt. No. 195 (§ 2255 Motion filed January 27, 2014); Clay v. United States, 537 U.S. 522, 525 5 (2003). However, the statute of limitations for § 2255 proceedings is subject to equitable tolling. 6 See, e.g., United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004). Felix alleges that his petition 7 was delayed because he was not informed of the one-year limitation by his appellate counsel, he is 8 not able to read and write in English, and it took over a year to obtain the records in his case and 9 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 10 11 whether these circumstances may qualify for tolling. Felix seeks relief from his incarceration and raises the following violations of his federal 12 rights: (1) Sixth Amendment right to a speedy trial; (2) violation of the Speedy Trial Act; and (3) 13 ineffective assistance of counsel. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, 14 the United States Attorney is to file an answer, motion, or other response by July 13, 2014. 15 ORDER 16 Respondent is ordered to file an answer, motion, or other response by July 13, 2014. 17 Movant has thirty days following the government’s service of its response to reply to the 18 government’s filing. The Clerk of Court shall serve a copy of this order and the motion and all 19 attachments thereto upon the United States Attorney’s Office for the Northern District of California 20 and send a copy to movant. 21 22 IT IS SO ORDERED. 23 24 Dated: June 19, 2014 _________________________________ Ronald M. Whyte United States District Judge 25 26 27 28 Case No. 14-CV-00408-RMW LM -2-

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