Martinez v. USA

Filing 3

ORDER that Petitioner shall have 20 days from entry of this Order in which to explain to the Court why the Section 2255 Motion to Vacate should not be dismissed as untimely. Signed by District Judge Martin Reidinger on 03/19/2013. (Pro se litigant served by US Mail.)(thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13-cv-00064-MR
[CRIMINAL CASE NO. 1:07-cr-00098-MR]

HOMERO MARTINEZ,

)
)
Petitioner,
)
)
vs.
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)
UNITED STATES OF AMERICA,
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)
Respondent.
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________________________________ )

ORDER

THIS MATTER is before the Court on Petitioner’s Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody [Doc. 1].
I.

Initial Screening
The Court has conducted an initial screening of the petition under

Rule 4(b) and finds that it appears that the motion is untimely. 28 U.S.C. §
2255(f). Furthermore, Petitioner has not signed the petition under penalty
of perjury.1

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On March 12, 2013, the Clerk mailed Petitioner a letter instructing him to sign the
petition. [Doc. 2].

II.

Discussion
In 1996, Congress enacted the Antiterrorism and Effective Death

Penalty Act (the “AEDPA”). Among other things, the AEDPA amended 28
U.S.C. § 2255 by imposing a one-year statute of limitations period for the
filing of a motion to vacate. Such amendment provides:

A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run
from the latest of(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 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.
28 U.S.C. § 2255(f).
Here, Petitioner pled guilty on December 26, 2007, to possession
with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).
[Criminal Case No. 1:07cr98, Doc. 24: Judgment]. On April 23, 2008, this
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Court sentenced Petitioner to 140 months’ imprisonment. Judgment was
entered on April 29, 2008. [Id.]. Petitioner appealed on May 6, 2008, but
he filed a subsequent motion to dismiss the appeal. The Fourth Circuit
dismissed the appeal on August 14, 2008, and issued its mandate the
same day. Petitioner’s conviction, therefore, became final for purposes of
Section 2255(f) on August 14, 2008. Petitioner did not file his Section 2255
motion to vacate, however, until more than four years later on March 12,
2013. It appears, therefore, that Petitioner’s Motion to Vacate is untimely.
In Section 18 of the petition regarding timeliness, Petitioner has
provided the following explanation as to why the one-year limitations period
does not bar his motion:
[Petitioner] does not have to show cause and
prejudice to collaterally attack enhanced sentence
on the ground that the district court lacked
jurisdiction to impose sentence, even though
defendant failed to object to the enhancement on
jurisdictional grounds at trial or on direct appeal, as
jurisdictional defect arising from prosecutor’s failure
to file information concerning prior conviction before
the acceptance of [Petitioner’s] guilty plea could not
be procedurally defaulted. Comprehensive Drug
Abuse Prevention and Control Act of 1970,
411(a)(1), 21 U.S.C.A. 851.
[Doc. 1 at 27].

Thus, Petitioner has already attempted to provide an

explanation as to why he contends that he was not required to file his
petition within one year of the date on which his conviction became final.
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The Court will, nevertheless, in an abundance of caution, grant Petitioner
another 20 days in which to provide an additional explanation as to why the
instant Section 2255 petition should not be dismissed as untimely, including
any reasons why equitable tolling should apply. See Hill v. Braxton, 277
F.3d 701, 706 (4th Cir. 2002); United States v. Blackstock, 513 F.3d 128,
133 (4th Cir. 2008) (remanding to district court pursuant to Hill for
determination of timeliness of § 2255 Motion).
IT IS, THEREFORE, ORDERED that Petitioner shall have 20 days
from entry of this Order in which to explain to the Court why the Section
2255 Motion to Vacate should not be dismissed as untimely. If Petitioner
does not file such explanation within 20 days from entry of this Order, the
petition may be dismissed without further notice.
IT IS FURTHER ORDERED that Petitioner shall also have 20 days
from entry of this Order in which to return a copy of the Section 2255
Motion to Vacate, signed in his own handwriting under penalty of perjury. If
Petitioner does not submit such signed Motion to Vacate within 20 days
from entry of this Order, the petition may be dismissed without further
notice.

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IT IS SO ORDERED.
Signed: March 19, 2013

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