Zapari v. USA

Filing 2

ORDER Dismissing Petition to Vacate under 28 USC 2255 and Denying Certificate of Appealiability. The Court finds that Petitioner's motion under 28 U.S.C.§ 2255 was not filed within the applicable period of limitations. Accordingly, Petit ioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is dismissed. Additionally, the Court denies Petitioner a certificate of appealability, as Petitioner has not made a substantial showing that he has been denied a constitutional right. The Clerk shall enter judgment accordingly. Signed by Judge Janis L. Sammartino on 9/23/2013.(All non-registered users served via U.S. Mail Service)(jao)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 UNITED STATES OF AMERICA, 12 Plaintiff/Respondent, 13 v. 14 15 MELCHOR ZAPARI, 16 Defendant/Petitioner. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 11-CV-1527-JLS Criminal No. 09-CR-1524-JLS ORDER DISMISSING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 and DENYING CERTIFICATE OF APPEALABILITY Currently pending before the Court is Petitioner’s Motion Under 28 U.S.C. § 2255 to 19 Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. No. 33). The 20 Court has reviewed the record in this case and, for the reasons set forth below, will dismiss 21 Petitioner’s motion. 22 23 BACKGROUND Petitioner Melchor Zapari was charged in a single-count information with importation of 24 methamphetamine in violation of 21 U.S.C. §§ 952 and 960. On May 28, 2009, Petitioner 25 entered a plea agreement and pled guilty to the charge. Petitioner was sentenced by this Court 26 on September 15, 2009 to a total term of imprisonment of 120 months, the statutory mandatory 27 minimum sentence. Petitioner filed his motion under 28 U.S.C. § 2255 on July 11, 2011. 28 11cv1527; 09cr1524 1 2 ANALYSIS The Antiterrorism and Effective Death Penalty Act of 1996 established a one-year statute 3 of limitations for motions brought under 28 U.S.C. § 2255. The one-year period of limitation 4 runs from the latest of: 5 (1) the date on which the judgment of conviction becomes final; 6 7 (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; 8 9 (3) 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; or 10 11 (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 12 28 U.S.C. § 2255(f). 13 In this case, Petitioner’s judgment of conviction became final on September 25, 2009, the 14 date when the seven-day time period for filing a direct appeal expired.1 See United States v. 15 Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (recognizing that statute of limitations for § 2255 16 motion began to run upon the expiration of the time during which the defendant could have 17 sought review by direct appeal). Thus, the period of limitation for filing a motion under 28 18 U.S.C. § 2255(f)(1) expired one year later, on September 25, 2010. 19 Petitioner has failed to demonstrate any circumstance that would permit the filing of his § 20 2255 motion beyond the one-year period after which his conviction became final. Petitioner has 21 not demonstrated an impediment created by governmental action for purposes of § 2255(f)(2). 22 Nor does he contend that review is warranted as result of a right newly recognized by the 23 Supreme Court as set forth in § 2255(f)(3). Finally, with respect to § 2255(f)(4), Petitioner's 24 habeas claims are based on facts which were known to him at the time his conviction became 25 26 1 In September, 2009, Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure required filing of the notice of appeal within 7 days (not counting weekends and holidays) after 27 the entry of judgment or the filing of the government’s notice of appeal, whichever was later. 28 That time period was changed to 14 days (all-inclusive) pursuant to amendments that did not become effective until December 1, 2009. 2 11cv1527; 09cr1524 1 final; thus, subsection four does not apply here. 2 Accordingly, the Court finds that the statute of limitations under 28 U.S.C. § 2255(f) 3 began running in this case on September 25, 2009 when Petitioner’s conviction became final. 4 Petitioner had until September 25, 2010 to file his § 2255 motion. Petitioner did not file his 5 motion until July 11, 2011, well after the limitations period expired. Therefore, his motion must 6 be dismissed as untimely. 7 8 CONCLUSION For the reasons set forth above, the Court finds that Petitioner’s motion under 28 U.S.C. 9 § 2255 was not filed within the applicable period of limitations. Accordingly, Petitioner’s 10 Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DISMISSED. 11 Additionally, the Court DENIES Petitioner a certificate of appealability, as Petitioner has not 12 made a substantial showing that he has been denied a constitutional right. See 28 U.S.C. § 13 2253(c) (providing that a certificate shall issue “only if the applicant has made a substantial 14 showing of a denial of a constitutional right.”). The Clerk shall enter judgment accordingly. 15 IT IS SO ORDERED. 16 DATED: September 23, 2013 17 18 Honorable Janis L. Sammartino United States District Judge 19 20 21 22 23 24 25 26 27 28 3 11cv1527; 09cr1524

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