Morban-Lopez v. USA

Filing 2

ORDER re 1 Pro Se MOTION to Vacate, Set Aside or Correct Sentence (2255) re: Criminal Case No. 3:99cr109. 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 Senior Judge Graham Mullen on 5/22/2017. (Pro se litigant served by US Mail.)(eef)

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DISTRICT COURT OF THE UNITED STATES WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:17-cv-237-GCM (3:99-cr-109-GCM-3) JOSE JULIO MORBAN-LOPEZ, ) ) Petitioner, ) ) vs. ) ) UNITED STATES OF AMERICA, ) ) Respondent. ) ____________________________________ ) 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. No. 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). 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; 1 (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. § 2255(f). Here, Petitioner pled guilty, pursuant to a written plea agreement, to conspiracy to possess with intent to distribute and distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841 and 846, and possession of a firearm during and in relation to a drug-trafficking crime and aiding and abetting the same, in violation of 18 U.S.C. § 924(c)(1), 18 U.S.C. § 2. (Criminal Case Nos. 3:99-cr-109-GCM-3, Doc. No. 37: Plea Agreement; Doc. No. 120: Judgment). On February 19, 2002, this Court sentenced Petitioner to a total of 87 months of imprisonment. Judgment was entered on March 6, 2002, and Petitioner did not appeal. (Id.). Petitioner’s conviction, therefore, became final ten days later, when his time to file a notice of appeal expired. See United States v. Clay, 537 U.S. 522, 524-25 (2003) (when a defendant does not appeal, his conviction becomes final when the opportunity to appeal expires); FED. R. APP. P. 4(b)(1)(A). Petitioner then had one year in which to file a timely petition. Petitioner did not place the Section 2255 motion to vacate, however, in the prison system for mailing until April 24, 2017. Because Petitioner filed his motion to vacate more than one year after his conviction became final, his motion to vacate is untimely under § 2255(f)(1), and none of the other time periods set forth under § 2255(f) appears to apply to render the petition timely. The Court will grant Petitioner 20 days in which to provide an 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 2 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: 1. 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. Signed: May 22, 2017 3

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