United States District Court, M.D. Florida, Orlando Division
DALTON JR. United States District Judge
case involves an Amended Motion to Vacate, Set Aside, or
Correct Sentence (“Amended Motion to Vacate, ”
Doc. 5) pursuant to 28 U.S.C. § 2255 filed by William
Paez Rubiano. The Government filed a Response to the Amended
Motion to Vacate (“Response, ” Doc. 7).
Petitioner filed a Reply to the Response (“Reply,
” Doc. 8).
asserts one claim for relief, that counsel rendered
ineffective assistance by failing to file an appeal after
being instructed to do so. For the following reasons, the
motion is denied as untimely.
was charged by Indictment with importing heroin into the
United States (Count One) in violation of 21 U.S.C.
§§ 952(a) and 960(b)(3) and possession with intent
to distribute heroin (Count Two) in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C). (Criminal Case No.
6:14-cr-124-Orl-37DAB, Doc. 11). Petitioner pled guilty as
charged. (Criminal Case Doc. 29). The Court sentenced
Petitioner below his guidelines range to concurrent
forty-eight month terms of imprisonment. (Criminal Case Doc.
38). Judgment was entered on September 16, 2014.
did not appeal his conviction or sentence. Petitioner
initiated the instant action on May 3, 2016, pursuant to the
mailbox rule. (Doc. 1).
to 28 U.S.C. § 2255, the time for filing a motion to
vacate, set aside, or correct a sentence is restricted, as
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental 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
(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 through the