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Flores v. United States

United States District Court, M.D. Florida, Fort Myers Division

August 31, 2017

JOSE EMIGDIO FLORES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on review of petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #259)[1] and Memorandum of Law in Support of § 2255 Motion (Cv. Doc. #2), both filed on February 21, 2017. The government filed a Response in Opposition (Doc. #8) on May 1, 2017. Petitioner presents only one ground for relief arguing for the retroactive application of Amendment 794 of the United States Sentencing Guidelines.

         I.

         On July 30, 2008, a federal grand jury in Fort Myers, Florida returned a three-count Indictment (Cr. Doc. #1) charging petitioner and others with conspiracy to possess with intent to distribute more than 500 grams of methamphetamine, and possession with intent to distribute more than 500 grams of methamphetamine. Defendant was further individually charged with knowingly carrying a firearm during and in relation to a drug trafficking crime, and in furtherance of the drug trafficking crime of conspiracy to possess and possession with intent to distribute more than 500 grams of methamphetamine. On April 20, 2009, defendant entered a plea of guilty as to Counts Two and Three of the Indictment. (Doc. #153.) The plea was accepted on the next day. (Doc. #156.) On July 20, 2009, Count One was dismissed upon motion of the United States, and the Court sentenced petitioner to a term of imprisonment of 135 months of imprisonment as to Count Two, and a term of 60 months of imprisonment as to Count Three, to be served consecutively to Count Two, followed by a term of supervised release. (Cr. Doc. #191.) Judgment (Cr. Doc. #192) was filed on July 20, 2009. Petitioner filed a Notice of Appeal (Cr. Doc. #196), and the Eleventh Circuit affirmed the convictions on May 28, 2010. United States v. Flores, 380 F.App'x 921 (11th Cir. 2010).

         On November 14, 2016, the Court denied a motion for the retroactive application of Amendment 782 to the United States Sentencing Guidelines finding petitioner's sentence would remain unchanged. (Cr. Doc. #257.) Petitioner filed his motion under § 2255 on February 21, 2017.

         II.

         Federal prisoners whose convictions became final after April 24, 1996, the effective date of The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), have one year from the latest of any of four events to file a § 2255 Motion:

(1) the date on which the judgment of conviction becomes final;
(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 governmental 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 through the exercise of due diligence.

28 U.S.C. § 2255(f). In this case, the Eleventh Circuit affirmed petitioner's convictions on May 28, 2010. Whether or not petitioner files a petition for certiorari, he “gets the benefit of up to 90 days between the entry of judgment on direct appeal and the expiration of the certiorari period.” Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002). Therefore, petitioner's convictions became final ninety days after they were affirmed, and petitioner had through August 29, 2011, to file his federal habeas petition. Giving petitioner the benefit of the mailbox rule[1], the motion under § 2255 was signed and executed on February 17, 2017. As a result, the motion is untimely from the date petitioner's conviction became final, 28 U.S.C. § 2255(f)(1) and is due to be dismissed as time-barred. The Court will also consider whether a later date may apply under § 2255(f).

         Petitioner argues that his motion is timely under § 2255(f)(4) because it was filed within one year of when facts became available. (Cv. Doc. #1, p. 10, ¶ 18.) Petitioner does not further expand on what facts were unavailable, or whether the facts were “discovered through the exercise of due diligence.” 28 U.S.C. § 2255(f)(4). Therefore, this argument is rejected. The other two bases, subsections (2) and (3) have no applicability in this case. Petitioner was not prevented from filing his petition by an impediment of the government[2], and petitioner seeks the retroactive application of a Sentencing Guidelines amendment ...


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