Hernandez-DeLuna v. USA

Filing 2

ORDERED that defendant Mateo Hernandez-DeLuna's petition for relief under 28 U.S.C. § 2255(ECF No. 26 filed in case 3:98-cr-108) is DENIED. IT IS FURTHER ORDERED that petitioner is DENIED a certificate of appealability. Signed by Judge Howard D. McKibben on 5/9/2017. (Copies have been distributed pursuant to the NEF - DRM) (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

)
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Respondent/Plaintiff, )
)
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vs.
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MATEO HERNANDEZ-De LUNA,
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Petitioner/Defendant. )
_________________________________ )

3:98-cr-00108-HDM
3:17-cv-00200-HDM
ORDER

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Before the court is defendant Mateo Hernandez-De Luna’s petition

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for relief under 28 U.S.C. § 2255 filed on March 31, 2017. (ECF No.

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26).

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On September 29, 1999, Hernandez-De Luna pled guilty to a one-

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count violation of 8 U.S.C. § 1326, unlawful reetry of a deported

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alien.

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imprisoned for a total term of seventy months and two years of

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supervised release.

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was amended to have the sentence run consecutively to the undischarged

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term of imprisonment for case CR96-1527 (a state court case).

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No. 22).

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On January 24, 2000, Hernandez-De Luna was sentenced to be

(ECF No. 21).

On February 3, 2000, the judgment

(ECF

Hernandez-De Luna did not appeal his conviction.

Pursuant to 28 U.S.C. § 2255, a federal inmate may move to vacate,
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set aside, or correct his sentence if: (1) the sentence was imposed

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in violation of the Constitution or laws of the United States; (2) the

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court was without jurisdiction to impose the sentence; (3) the

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sentence was in excess of the maximum authorized by law; or (4) the

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sentence is otherwise subject to collateral attack.

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§

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limitation for the filing of such motions.

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one-year period runs from the latest of four specified events:

2255(a).

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The

statute

imposes

a

strict

one-year

Id. at

28 U.S.C.
statute

§ 2255(f).

of
The

(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 or laws 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, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review;
or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.

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Id. at

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timely based on any of the four events specified in § 2255(f).

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Rather, the defendant asserts that he “wasn’t aware of any Appeal

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Rights.”

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§ 2255(f).

Even

The defendant does not argue that his motion is

(ECF No. 26 at 11).
if

the

motion

is

untimely,

the

one-year

statute

of

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limitations on § 2255 is subject to equitable tolling, which applies

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when “extraordinary circumstances beyond [the movant’s] control made

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it impossible to file a petition on time and the extraordinary

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circumstances were the cause of his untimeliness.”

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Battles, 362 F.3d 1195, 1197 (9th Cir. 2004) (quoting Laws v.

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Lamarque, 351 F.3d 919, 922 (9th Cir. 2003)).

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prove that he has diligently pursued his rights and extraordinary
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United States v.

If the defendant can

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circumstances exist, the court may toll the one-year statute of

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limitations.

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(9th Cir. 2010).

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United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045

Here, the amended judgment was entered on February 3, 2000.

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Defendant did not appeal his conviction.

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for relief under 28 U.S.C. § 2255 on March 31, 2017, which is more

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than 17 years after entry of judgment.

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one-year statute of limitations, the defendant’s motion is untimely.

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The defendant has failed to make a showing that he diligently

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pursued his rights or that extraordinary circumstances exist that

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would justify the tolling of the one year limitation period. The only

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reason he expresses for the 17 year delay in filing his motion is that

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he

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insufficient to establish any basis for the court to conclude that the

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defendant may have a colorable claim for equitable tolling.

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the defendant is not entitled to equitable tolling and this court

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finds that his petition is untimely.

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“wasn’t

aware

of

any

Appeal

Defendant filed his motion

Therefore, under

Rights.

.

.”

This

reason

is

As such,

IT IS THEREFORE ORDERED that defendant Mateo Hernandez-DeLuna’s
petition for relief under 28 U.S.C. § 2255(ECF No. 26) is DENIED.
IT IS FURTHER ORDERED that petitioner is DENIED a certificate of
appealability.
DATED: This 9th day of May, 2017.

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§ 2255's

____________________________
UNITED STATES DISTRICT JUDGE

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