United States District Court, E.D. Michigan, Southern Division
PRESENT: Honorable Gerald E. Rosen United States District
ORDER DENYING PETITIONER'S § 2255 MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE
E. Rosen, United States District Judge
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.
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.
2255 provides for a one-year limitations period which runs
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 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).
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 §
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).
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
foregoing reasons, the Court concludes that Petitioner
Hernandez's motion is time-barred ...