Mancilla-Brevichet v. USA - 2255

Filing 2

MEMORANDUM OPINION (c/m to Petitioner Billymir Alejandr Mancilla-Brevichet 2/20/18 sat). Signed by Judge Deborah K. Chasanow on 2/20/2018. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
UNITED STATES OF AMERICA
:
v.

:

Criminal No. DKC 12-0624-001
Civil Action No. DKC 17-2180

:
BILLYMIR MANCILLA-BREVICHET
:
MEMORANDUM OPINION
Plaintiff filed a motion to vacate, set aside, or correct
sentence

pursuant

to

28

U.S.C.

ineffective assistance of counsel.

§

2255

raising

ECF No. 359.

claims

of

The motion was

received by the clerk for filing on August 1, 2017, and is dated
July 26, 2017.

The Government’s response alleges the motion is

untimely, and otherwise without merit.
issued

an

Order

on

December

1,

ECF No. 365.

2017,

placing

The court

Petitioner

on

notice that his motion to vacate would be dismissed as untimely
unless he provided the court with information that established
he is either entitled to the benefit of the exceptions provided
in 28 U.S.C. § 2255, or he is entitled to an equitable tolling
of

the

statute

of

limitations.

Petitioner

has

not

filed

a

response.
Petitioner

pled

guilty

to

one

count

of

conspiracy

to

distribute and possess with intent to distribute 100 kilograms
or more of marijuana and one count of conspiracy to commit money

laundering on April 1, 2013.
2013,

to

90

months

supervised release.

He was sentenced on August 6,

imprisonment

followed

ECF No. 198.

by

four

years

of

His sentence was reduced on

November 19, 2015, to 73 months based on a sentencing guidelines
range that had been retroactively lowered by the United States
Sentencing
Affording

Commission.
his

ECF

sentencing

the

No.

347.

most

No

appeal

generous

was

noted.

construction,

his

conviction became final on November 19, 2015, as the one-year
statute of limitations set out under 28 U.S.C. § 2255(f)(1)
began to run on that date.

See United States v. Sanders, 247

F.3d 139, 142 (4th Cir. 2001) (where no appeal taken, statute of
limitations begins to run on date the court entered the judgment
of conviction).

Therefore, Petitioner had until November 19,

2016, to file a timely motion to vacate and did not do so.
Petitioner’s

motion

to

vacate,

set

aside,

or

correct

sentence filed pursuant to 28 U.S.C. § 2255 will be denied and
the Clerk will be ordered to close Mancilla-Brevichet v. United
States, Civil Action No. DKC-17-2180.
When a district court dismisses a habeas petition solely on
procedural
issue

grounds,

unless

the

a

Certificate

petitioner

can

of

Appealability

demonstrate

both

will

“(1)

not

‘that

jurists of reason would find it debatable whether the petition
2

states a valid claim of the denial of a constitutional right’
and (2) ‘that jurists of reason would find it debatable whether
the

district

court

was

correct

in

its

procedural

ruling.’”

Rouse v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack
v.

Daniel,

529

U.S.

473,

484

(2000)).

Petitioner

fails

satisfy this standard.

February 20, 2018

/s/
DEBORAH K. CHASANOW
United States District Judge

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to