VALTIERRA, GERALDO v. USA

Filing 2

ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255. Defendant is not entitled to a certificate of appealability. Signed by District Judge Barbara B. Crabb on 7/16/13. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
OPINION AND ORDER
Plaintiff,
13-cv-499-bbc
06-cr-126-bbc
v.
GERARDO VALTIERRA,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Defendant Gerardo Valtierra has filed a motion for post conviction relief under 28
U.S.C. § 2255. Among other things, he asserts that he was denied the effective assistance
of counsel. Unfortunately for defendant, he has filed his motion too late.
Section 2255 has a one-year period of limitations that begins running from the latest
of the following dates: (1) the date on which the defendant’s conviction becomes final; (2)
the date on which any impediment to the filing of the motion has been removed, provided
that the impediment was an illegal one created by government action and one that actually
prevented the defendant from filing his motion; (3) the date on which the right asserted was
recognized initially by the Supreme Court, provided that the right was both newly

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recognized by the Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the defendant could have discovered the facts supporting his claims
through the exercise of due diligence. § 2255
Defendant was sentenced on February 16, 2007. The United States Court of Appeals
affirmed defendant’s judgment of conviction on July 23, 2008. Defendant did not petition
for a writ of certiorari.
Under § 2255, defendant had one year from the date on which “the judgment of
conviction [became] final” in which to bring a post conviction motion. The conviction
would have become final 90 days after July 23, 2008, or October 21, 2008. Clay v. United
States, 537 U.S. 529-30 (2003) (one-year statute of limitations does not begin to run until
90 days after time for filing petition for writ of certiorari has expired, even if defendant does
not file such petition). Therefore, defendant had until October 21, 2009, in which to file
a § 2255 motion unless he fits within one of the special circumstances in which the time for
filing is extended. Defendant has not alleged any facts from which I could find that any one
of those special circumstances apply in his case, and I am aware of none. Therefore, I
conclude that defendant’s motion is untimely because it was not filed until July 3, 2013.

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Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must
issue or deny a certificate of appealability when entering a final order adverse to a defendant.
To obtain a certificate of appealability, the applicant must make a "substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S.
274, 282 (2004). This means that "reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations omitted). Defendant
has not made a substantial showing of a denial of a constitutional right so no certificate will
issue.

ORDER
IT IS ORDERED that defendant Gerardo Valtierra’s motion for post conviction relief
under 28 U.S.C. § 2255 is DENIED as untimely. Defendant is not entitled to a certificate
of appealability because he has not made a substantial showing of the denial of a

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constitutional right.

Entered this 16th day of July, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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