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United States v. Yepez

United States District Court, D. South Carolina, Columbia Division

April 3, 2017

United States of America,
v.
Rolando Verdines Yepez Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Defendant's motion for relief, filed in this court pursuant to 28 U.S.C. § 2255.[1] ECF No. 228. For the reasons below, Defendant's Motion to Vacate pursuant to § 2255 is dismissed.

          I. Background

         In May of 2009, Defendant was indicted on two counts: one count of conspiracy to possess with intent to distributed 5 kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); and one count of eluding examination and inspection by immigration officers by an alien, in violation of 8 U.S.C. § 1325(a)(2). A superseding indictment was filed on July 22, 2009, adding additional counts.

         Defendant entered into an amended written plea agreement on September 1, 2009, agreeing to plead guilty to counts one and two of the superseding indictment: conspiracy to possess with intent to distribute and improper entry by an alien. ECF No. 95. Defendant entered a guilty plea the same day. ECF No. 96. Defendant was sentenced on February 5, 2010, and Judgment entered on February 8, 2010, sentencing Defendant to one hundred and fifty (150) months incarceration, followed by five years of supervised release. ECF No. 129.

         On February 18, 2010, Defendant filed a Notice of Appeal with the Fourth Circuit. ECF No. 133. The Fourth Circuit affirmed Defendant's conviction and sentence in an opinion filed January 16, 2011. ECF No. 182. The Mandate and Judgment of the Court of Appeals was filed on February 16, 2011. ECF No. 183.

         Defendant filed his motion pursuant to § 2255 on December 6, 2016. ECF No. 228. The Government filed a motion to dismiss and a response in opposition to Defendant's § 2255 motion on March 15, 2017. ECF Nos. 231, 232. A Roseboro order was entered by the court and mailed to Defendant, advising him of the importance of a dispositive motion and the need to file an adequate response. ECF No. 234. Defendant replied on March 27, 2017. ECF No. 336.

         II. Timeliness

         Title 28, United States Code § 2255(f) imposes a one-year statute of limitation on motions for relief under 28 U.S.C. § 2255. Pursuant to the AEDPA, the limitation period runs 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 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). Therefore, unless subject to a statutory exception, a defendant must file an application for relief under § 2255 within one year of his or her conviction becoming final.

         Defendant's conviction was final when the Judgment was handed down by the Fourth Circuit on February 16, 2011.[2] Defendant's motion for relief was not filed until December 6, 2016. Therefore, Defendant's ...


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