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Jose Ruiz Solorio v. United States of America

March 30, 2012

JOSE RUIZ SOLORIO, MOVANT,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Judge Trauger

ORDER

Pending before the Court is a motion filed pro se under 28 U.S.C. § 2255*fn1 by Jose Ruiz Solorio, a prisoner presently housed at the Giles W. Dalby Correctional Facility in Post, Texas. In this motion, Solorio seeks dismissal of the indictment against him on the basis that, in violation of the requirements set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), the indictment did not specify the type or amount of the drugs at issue in the charges against him.*fn2 He further asserts that because the indictment was defective, this court lacked jurisdiction to sentence him.

On February 29, 2012, the Court entered an order directing Solorio to show cause why the court should not dismiss the motion as time-barred. The movant has responded to that directive by submitting a brief in which he simply asserts that Rule 12 of the Federal Rules of Criminal Procedure provides that a claim that an indictment is defective because it fails to state an offense may be raised "at any time while the case is pending," including "for the first time on direct appeal." (ECF No. 4, at 2 (citing Fed. R. Crim. P. 12(b)(3)).) Solorio argues that his conviction and sentence are still pending and that the court should therefore conclude that his motion to dismiss the indictment is timely under Rule 12(b)(3).

The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes that state and federal prisoners have a one-year limitations period in which to file a habeas corpus petition. That period begins to run from one of four specified dates, the first of which is "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). Generally, a conviction becomes final upon conclusion of direct review. See Sanchez--Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004) (citing United States v. Cottage, 307 F.3d 494, 498 (6th Cir. 2002)). When a federal criminal defendant appeals to the court of appeals, the judgment of conviction becomes final for ยง 2255 purposes upon the expiration of the ninety-day period after issuance of the appellate ruling ...


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