Contreras-Flores v. United States of America

Filing 5

ORDER adopting 3 Report and Recommendation to deny motion to vacate, set aside or correct sentence; overruling 4 Objection to Report and Recommendation.. Signed by U.S. District Judge Karen E. Schreier on 6/26/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
EDUARDO CONTRERAS-FLORES,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Civ. 14-4057- KES

ORDER DENYING MOTION TO
VACATE, SET ASIDE OR CORRECT
SENTENCE

Petitioner, Eduardo Contreras-Flores, an inmate at the Yazoo City Medium
Federal Correctional Institution in Yazoo City, Mississippi, filed a Motion to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody under 28
U.S.C. § 2255. Docket 1. The matter was referred to United States Magistrate
Judge John E. Simko pursuant to 28 U.S.C. § 636(b)(1)(B) for the purposes of
conducting any necessary hearings, including evidentiary hearings, and issuing a
report and recommendation for the disposition of Contreras-Flores’ motion.
BACKGROUND
On March 11, 2011 petitioner entered a plea of guilty to the charge of
Illegal Reentry After Deportation in violation of 8 U.S.C. §§ 1326(a) and (b), and
on April 15, 2011, was sentenced to 77 months’ imprisonment. On October 19,
2011, the Eighth Circuit Court of Appeals dismissed petitioner’s direct appeal. On
April 14, 2014, petitioner made the instant 18 U.S.C. § 2255 motion. In his
motion, petitioner requested that the court vacate his sentence and apply a two-

level downward departure for acceptance of responsibility. Docket 1. Magistrate
Judge Simko concluded that, because the petitioner’s claims are barred by the
Antiterrorism and Effective Death Penalty Act (AEDPA) one-year statute of
limitations, petitioner’s motion must be dismissed. Docket 3. Petitioner filed a
timely objection to the Report and Recommendation. Docket 4. For the reasons
set forth herein, Magistrate Judge Simko’s Report and Recommendation is
adopted in its entirety.
STANDARD OF REVIEW
This court’s review of a magistrate judge’s decision is governed by 28
U.S.C. § 636(b)(1), and the court reviews de novo any objections that are timely
made and specific. See Fed. R. Civ. P. 72(b) (“The district judge must determine
de novo any part of the magistrate judge’s disposition that has been properly
objected to.”).
DISCUSSION
The Antiterrorism and Effective Death Penalty Act (AEDPA) mandates that
federal prisoners who seek habeas relief file their petition within one year of when
their conviction becomes final. See 28 U.S.C. § 2255. A conviction becomes final
ninety days after the Eighth Circuit’s ruling on the direct appeal. See United
States v. Sanchez-Gonzalez, 643 F.3d 626, 629 (8th Cir. 2011). Courts will give
prisoners relief who file after the one-year limitation only in “[e]xtraordinary
circumstances.” United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). A
circumstance is extraordinary if a petitioner, with reasonable diligence, could not

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have discovered the information needed to file his claim, see Taliani v. Chrans,
189 F.3d 597, 597 (7th Cir. 1999), or petitioner was prevented from filing his
motion because of impediments “created by governmental action in violation of
the Constitution or the laws of the United States.” 28 U.S.C. § 2255.
In the instant action, the record shows that the Eighth Circuit issued its
ruling on October 19, 201, on petitioner’s direct appeal. Ninety days later–
January 17, 2013–is the last day within the one-year statutory period in which
petitioner could timely file his habeas petition. Petitioner, however, did not file his
petition until April 14, 2014. Except for evidence about his counsel’s
incompetency, petitioner has presented no evidence of any impediments that
prevented him from filing his habeas petition by January 17, 2013, or any other
reason why his claims could not have been discovered before April 14, 2014.
Accordingly, it is
ORDERED that petitioner’s motion to vacate, set aside, or correct his
sentence (Docket 1) is denied, and the magistrate judge’s report and
recommendation is adopted.
IT IS FURTHER ORDERED that no certificate of appealability be issued.
Dated June 26, 2014.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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