Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona T IM O TH Y FR AN CISC O A ND RE W S Assistant United States Attorney 4035 South Avenue A Yuma AZ 85365 Arizona State Bar No. 018120 Telephone (928) 344-1087 Email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

United States of America, Plaintiff-Respondent, v. Cristobal Carrera-Acosta, Defendant-Movant.

CR-03-1048-PHX-JAT CV-05-2121-PHX-JAT(MEA) RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

The United States of America, by and through undersigned counsel, hereby opposes 15 defendant Cristobal Carrera-Acosta's Motion to Vacate, Set Aside, or Correct Sentence 16 pursuant to 28 U.S.C. § 2255 for the reasons set forth in the attached Memorandum of Points and 17 Authorities. 18 19 20 21 22 23 24 25 26 27 28 s/ Timothy Francisco Andrews TIMOTHY FRANCISCO ANDREWS Assistant United States Attorney PAUL K. CHARLTON United States Attorney District of Arizona Respectfully submitted this 24 th day of October 2005.

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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 III. Analysis II. I.

MEMO RANDUM OF POINTS AND AUTHORITIES Issues Presented Defendant-Movant Cristobal Carrera-Acosta is currently confined at FCI-Sheridan in Sheridan, Oregon. On July 18, 2005, he filed a pro se motion pursuant to 28 U.S.C. § 2255 seeking relief on the following grounds: (1) that his conviction is invalid because the statute referenced in his judgment of sentence contains a typographical error; and (2) that he received ineffective assistance of counsel during plea negotiations and sentencing. The Government now files this response.

Procedural History On September 9, 2003, Defendant was arrested for and charged with importing 5

kilograms or more of cocaine through the San Luis Port of Entry in San Luis, Arizona. Defendant pleaded guilty to the foregoing charge on October 7, 2003. On May 17, 2004 Defendant was sentenced to a 51-month term of imprisonment. (Exhibit A.) More than one year later, on July 18, 2005, Defendant filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. On August 31, 2005, the Court ordered the government to respond to the motion.

Defendant's motion is untimely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, which became effective on April 24, 1996, establishes 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. The statute of limitations under § 2255 begins to run on the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(1). For habeas purposes, a conviction becomes final when the availability of direct appeal is exhausted. United States v. Schwartz, 274 F.3d. 1220, 1223 (9th Cir. 2001). Defendant's conviction was final at the latest on or about June 1, 2004, 10 working days 2

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after entry of the final Judgment and Commitment order by the district court, when the time would have expired for him to file a notice of appeal. Schwartz, 274 F.3d. at 1223. Accordingly, Defendant had one year from that date to file a §2255 motion, until on or about May 31, 2005. Defendant contends that the reason why his motion was untimely is because he was denied access to legal materials, pens and paper. The government has received no evidence that would substantiate defendant's claim. Furthermore, the government believes that it is highly unlikely that Defendant would be denied the opportunity to file his motion for an entire year. In that Defendant did not file the instant §2255 motion until July 18, 2005, the motion is untimely on its face. The government submits therefore that the motion should be dismissed.

IV. Conclusion Because the defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 was not timely filed, the Government requests that the motion be denied and this action dismissed. Respectfully submitted this 24 th day of October 2005.

PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Francisco Andrews TIMOTHY FRANCISCO ANDREWS Assistant United States Attorney

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CERTIFICATE OF SERVICE I hereby certify that, on October 24, 2005, I mailed the attached document to the following, who are not registered participants of the CM/ECF filing system. Cristobal Carrera-Acosta #62165-208 FCI-Sheridan P.O. Box 5000 Sheridan, OR 97378 by: s/ Timothy Francisco Andrews

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