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Hernandez v. United States

United States District Court, E.D. Michigan, Southern Division

January 13, 2017

FELIPE HERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civ. No. 16-cv-13355

          PRESENT: Honorable Gerald E. Rosen United States District Judge

          ORDER DENYING PETITIONER'S § 2255 MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

          Gerald E. Rosen, United States District Judge

         This matter is presently before the Court on the Motion filed pro se by Petitioner Felipe Hernandez pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence. The Government has responded to the motion.

         Felipe Hernandez and three of his co-defendants, were tried before a jury in August-September 1998 and convicted on charges of conspiracy to possess cocaine with intent to distribute; murder-for-hire; aiding and abetting an intentional killing; and aiding and abetting a firearms murder in relation to a drug trafficking crime. Hernandez was additionally convicted on a witness tampering charge. On May 20, 1999, Hernandez was sentenced to four concurrent terms of life imprisonment on the first four crimes and a concurrent term of 120 months for witness tampering. Hernandez thereafter appealed to the Sixth Circuit Court of Appeals, and on October 9, 2002, the Sixth Circuit affirmed the convictions and sentences. Hernandez did not petition the Supreme Court for a writ of certiorari.

         Section 2255 provides for a one-year limitations period which 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 government 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 mad retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the clalim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

         For purposes of subsection (f)(1), “a conviction becomes final at the conclusion of direct review.” Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001). Where a defendant appeals to the Court of Appeals, but does not seek review by the Supreme Court, as was the case here, the judgment of conviction becomes final for § 2255 purposes upon the expiration of the 90-day period in which the defendant could have petitioned for certiorari to the Supreme Court, even when no certiorari petition is filed. Sanchez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004) (citing Clay v. United States, 537 U.S. 522, 532 (2003)). Hernandez's conviction, therefore, became final 90-days after the Sixth Circuit decided his appeal, i.e., on January 6, 2003. Accordingly, Hernandez had until January 6, 2004 to file a § 2255 motion. However, he did not file his motion until September 15, 2016. The motion is, therefore, untimely under § 2255(f)(1).

         To the extent Hernandez relies on § 2255(f)(2) or (f)(4), he has made no allegation that any illegal action raised by the Government prevented him from making the timely petition or the existence of facts affecting his case that could not have previously been discovered through due diligence. That leaves only subsection (f)(3). To the extent Petitioner relies on subsection (f)(3), the Court notes that triggering the renewed window contained in that provision requires that the requested relief be based on: (1) A right newly recognized by the Supreme Court and (2) made retroactively applicable by that same Court. 28 U.S.C. § 2255(f)(3).

         Though Hernandez purports to rely on cases involving the “residual” clause of the Armed Career Criminal Act (the “ACCA”), these cases do not affect Hernandez because he was not convicted under the ACCA, and those of his prior sentences that fell within the “residual” clause were not used to enhance his sentence.

         For the foregoing reasons, the Court concludes that Petitioner Hernandez's motion is time-barred ...


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