Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona LISA JENNIS SETTEL Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1188-PHX-NVW Plaintiff/Respondent CV 06-1325-PHX-NVW(JRI) v. Ricardo Najera-Escobar, Defendant/Movant. RESPONSE TO MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (28 U.S.C. § 2255)

COMES NOW the United States, by and through the undersigned counsel, and 15 responds to the motion filed on June 14, 2006, by Ricardo Najera-Escobar, requesting relief 16 under 28 U.S.C. § 2255. The government requests that this court deny the petitioner's 17 motion for modification of his sentence. The government's response is supported by the 18 attached memorandum. 19 RESPECTFULLY SUBMITTED this 28th day of July, 2006. 20 21 22 S/Lisa J. Settel 23 24 25 26 27 28 LISA JENNIS SETTEL Assistant United States Attorney PAUL K. CHARLTON United States Attorney District of Arizona

Case 2:03-cr-01188-NVW

Document 360

Filed 07/28/2006

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROCEDURAL HISTORY:

MEMORANDUM

On December 2, 2004, the movant, Ricardo Najera-Escobar, pled guilty to a one count Information charging 18 U.S.C. § 924(c)(1)(A)(ii), Possession (brandishing) of a firearm in relation to a crime of violence (hostage taking). The movant appeared before the Honorable Neil V. Wake for sentencing in this matter on March 14, 2005. After hearing from the parties and pursuant to the stipulated sentence in the plea agreement, the movant was sentenced to 84 months of imprisonment and three years of supervised release. No appeal was ever filed. The Judgment was filed on March 17, 2005. On May 18, 2006, the movant filed his first motion requesting that this court grant him relief from the sentence imposed. This motion was dismissed for failure to use the courtapproved form when filing a pro se petition pursuant to 28 U.S.C. § 2255 and for failure to state the facts supporting his requested grounds for relief. See Rules 2(b) and 2(c) and LRCiv 3.5(a). On June 14, 2006, movant filed an amended motion pursuant to Section 2255. As grounds for his request, the movant asserts that defense counsel was ineffective and that his Fourth Amendment Rights were violated by illegal search and seizure.. DISCUSSION: The Movant's Request for Relief Pursuant to 28 U.S.C. § 2255 is Untimely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104132, 110 Stat. 1214, became effective on April 24, 1996. It established both procedural and substantive limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. Particularly, in section 105 of AEDPA, Congress established a one-year period of limitations for such motions. Section 105 of the AEDPA amended 28 U.S.C. § 2255 to state, in pertinent part: 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 -2Case 2:03-cr-01188-NVW Document 360 Filed 07/28/2006 Page 2 of 4

1 2 3 4 5 6 7 8 28 U.S.C. § 2255. 9

motion created by government 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 government action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly 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 by the exercise of due diligence.

Thus, motions filed under Section 2255 must be filed within one year of the final 10 judgment, unless one of the exceptions outlined in subsections (2) through (4) applies. See 28 11 U.S.C. § 2255. Subsection (1) applies in this case and the limitations period runs from the 12 date on which Movant's judgment of conviction became final. Having failed to file an 13 appeal, defendant's conviction became final on March 31, 2005, 10 business days after the 14 entry of judgment on March 17, 2005 (14 total days, including ten business days and four 15 weekend days). Fed. R. Crim. P. 32(K)(1) and Fed. R. App. P. 4(b). The defendant did not 16 file his first motion under § 2255 until May 18, 2006, more than one year after his conviction 17 became final. Even applying the "mailbox rule" of Houston v. Lack, 487 U.S. 266 (1988), 18 and assuming the defendant mailed the motion the day he signed it, the motion is untimely. 19 The defendant signed his motion on May 14, 2006, more than six weeks beyond the 20 expiration of the limitation period. Because the defendant failed to file his motion within one 21 year of the date upon which his conviction became final, his motion is untimely and should 22 be dismissed. 23 The Ninth Circuit recognizes that the limitations period is subject to equitable tolling 24 which applies were "`extraordinary circumstances' beyond a prisoner's control make it 25 impossible to file a petition on time." Calderon v. United States Dist. Court, 128 F.3d 1283, 26 27 However, the defendant has failed to demonstrate that any of the other grounds were present 28 -3Case 2:03-cr-01188-NVW Document 360 Filed 07/28/2006 Page 3 of 4 1288 (9 th Cir. 1997), overruled, in part, on other grounds, 163 F.3d 530 (9 th Cir. 1998).

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which could have extended the statute of limitations. He has not alleged the existence of any impediment resulting from unconstitutional governmental action that prevented him from filing his motion in a timely manner or the discovery of any new facts that he could not previously have discovered in the exercise of due diligence. Thus, the defendant's claim is untimely. CONCLUSION: Not only did the movant in this case waived his right to appeal in his plea agreement, he agreed to a seven year sentence which is the mandatory minimum sentence required by statute. See 18 U.S.C. Section 924(c)(1)(A)(ii). Lastly, the movant's request for modification of his sentence is untimely. As such, the government respectfully requests that this court deny the defendant's request for modification of his sentence. RESPECTFULLY SUBMITTED this 28 th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/Lisa J. Settel

16 17 18 19 20 21 22 23 24 25 26 27 28 -4Case 2:03-cr-01188-NVW Document 360 Filed 07/28/2006 Page 4 of 4 Certificate of Service I hereby certify that on the 28th day of July, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Alex D. Gonzalez I hereby certify that on 28th day of July, 2006, I served the attached document by mail on the following who is not a registered participant of the CM/ECF System: Ricardo Najera-Escobar # 81309-008, BSCC-Big Spring-CHU, Cedar Hill Unit, 3711 Wright Avenue, Big Spring, TX 79720 LISA JENNIS SETTEL Assistant United States Attorney