VALTIERRA, GERALDO v. USA

Filing 5

ORDER granting 4 Motion for Reconsideration re 2 Order on Motion to Vacate Sentence per 28 USC 2255. Case reopened. Briefing set. Signed by District Judge Barbara B. Crabb on 7/31/13. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
ORDER
Plaintiff,
13-cv-499-bbc
06-cr-126-bbc
v.
GERARDO VALTIERRA,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Defendant Gerardo Valtierra has filed a motion for reconsideration of the denial of
his motion for post conviction relief. In an order entered on July 16, 2013, I denied the
motion as untimely under 28 U.S.C. § 2255(f)(1). (Defendant’s conviction became final on
October 21, 2008; he filed his motion for post conviction relief on July 3, 2013.) In his
motion for reconsideration, defendant argues that it was error to deny the motion because
he is raising a claim under Alleyne v. United States, 113 S. Ct. 420 (2013). That claim was
not apparent in his initial motion, but it is sufficient to justify his request for
reconsideration. If defendant has a valid claim under Alleyne, his July 3, 2013 motion for
post conviction relief would not be untimely.

ORDER
IT IS ORDERED that the United States may have until August 21, 2013, in which

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to respond to defendant’s motion for post conviction relief as it relates to his claim that
judicial factfinding in his case increased the mandatory minimum sentence to which he was
subject. Defendant may have until September 11, 2013 in which to file his reply brief.
Entered this 31st day of July, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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