United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
proceeding pro se, filed a “motion to request
de novo hearing pursuant to Federal Rule 802,
” challenging his base offense level which he asserts
was improperly increased based on a hearsay statement from a
co-conspirator. ECF No. 127. Upon review of this motion, the
district court informed Defendant of its intent to construe
his motion as one under 28 U.S.C. § 2255. ECF No. 128.
Defendant was provided the choice whether to withdraw his
motion or amend it to include all grounds for relief he
wished to pursue under § 2255. Id. After some
confusion regarding the need for certification by the Court
of Appeals, Defendant filed a pro se motion
to vacate under § 2255 by the deadline provided by the
court. ECF No. 140. The Government filed a response in
opposition and a motion for summary judgment. ECF No. 143,
144. Pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), the court advised Defendant of the summary
judgment procedure and the consequences if he failed to
respond. ECF No. 145. Defendant filed his response in
opposition to the Government's motion for summary
judgment. ECF No. 147.
argues his counsel was ineffective for failing to inform him,
as a person “of Mexican descent, ” of his right
to consular assistance under the Vienna Convention. ECF No.
140 at 2-4. Defendant also contends his inability to
understand English was an “impasse” to him
defending his case; he does not remember being read his
Miranda rights and dismissed one interpreter who he
believed was pressuring him to cooperate with the Government.
Id. at 4-7.
Government argues Defendant's motion is untimely because
it was filed nearly four years after his judgment became
final in November 2013. ECF No. 143. In response, Defendant
contends he diligently pursued his rights to the best of his
ability and the grounds in his §2255 motion are
“well within the scope of the laws of the United States
of America.” ECF No. 147.
motion is untimely. A 1-year period of limitation applies to
motions under § 2255.
limitation period shall run from the latest of--
(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
exercise of due diligence.
28 U.S.C. § 2255(f). As noted by the Government,
Defendant did not bring his § 2255 motion within a year
of the judgment of conviction becoming final: the Judgment
was entered on the record on November 7, 2013, and Defendant
did not appeal. Defendant alleges no facts showing (f)(2) or
(3) applies. He mentions due diligence, and could be
attempting to fit his claim under (f)(4); however, the facts
of his claims do not support application of (f)(4). His
claims are for ineffective assistance of counsel and
difficulties with the interpreters, both of which were known
to Defendant at the time of his conviction and sentencing.
Therefore, (f)(4) does not apply, and Defendant's §
2255 motion is untimely. Accordingly, the Government's
motion for summary judgment is granted, and Defendant's
§ 2255 motion is hereby dismissed.
governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial ...