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Gonzalez v. United States

United States District Court, E.D. Tennessee, Chattanooga

June 11, 2018

LETICIA GONZALEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Christopher H. Steger Magistrate Judge.

          MEMORANDUM OPINION

          TRAVIS R. McDONOUGH UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion to vacate, set aside, or correct sentence pursuant to Title 28, Section 2255 of the United States Code filed by Petitioner Leticia Gonzalez. (Doc. 237.) For the following reasons, Petitioner's motion to vacate, set aside, or correct her sentence (Doc. 237) will be DENIED.

         I. BACKGROUND

         In April 2013, Petitioner pleaded guilty to one count of conspiracy to possess with the intent to distribute and to distribute five kilograms or more of a mixture and substance containing a detectable amount of cocaine, in violation of Title 21, Sections 846 and 841(a)(1), (b)(1)(A) of the United States Code. (See Doc. 132.) Petitioner's plea agreement specifically states that the punishment for pleading guilty “is a term of imprisonment not less than ten years followed by a term of supervised release not less than five years and a fine up to ten million dollars.” (Doc. 144, at 1.) Additionally, during Petitioner's change of plea hearing, Magistrate Judge William Carter specifically advised her that, by pleading guilty, she would be subject to a term of imprisonment of at least ten years. (Doc. 242, at 4.) Petitioner testified, under oath and through an interpreter, that she understood the range of punishment she would face and stated that she wanted to plead guilty. (Id. at 18.)

         At sentencing, the Court calculated Petitioner's advisory guidelines range as 168 to 210 months' imprisonment. (See Presentence Investigation Report, at 10.) After granting a motion for downward departure, the Court sentenced Petitioner to 121 months' imprisonment and entered its judgment on December 12, 2013. (Doc. 211.) Petitioner did not appeal her conviction or sentence to the United States Court of Appeals for the Sixth Circuit.

         On November 16, 2015, Petitioner filed the instant motion to vacate, set aside, or correct her sentence pursuant to Title 28, Section 2255 of the United States Code. (Doc. 237.) Although not entirely clear, in her motion, Petitioner appears to argue that: (1) her due process rights were violated under the Fifth Amendment of the United States Constitution because English is her second language and she believed that her sentence would not exceed five years' imprisonment; (2) she received ineffective assistance of counsel because counsel should have negotiated a more favorable plea agreement; and (3) she is entitled to a sentence reduction based on Amendment 782 to the United States Sentencing Guidelines. (Id. at 4-5, 12.)

         II. STANDARD OF LAW

         To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate: “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). The petitioner “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         III. ANALYSIS

         A. Timeliness of Petition

         Title 28, Section 2255(f) of the United States Code places a one-year statute of limitations on all petitions for collateral relief under § 2255 running from either: (1) the date when the judgment of conviction becomes final; (2) the date when 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 when 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 when the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).

         In this case, Petitioner's motion to vacate, set aside, or correct her sentence is not timely. “[W]hen a federal criminal defendant does not appeal to the court of appeals, the judgment becomes final upon the expiration of the period in which the defendant could have appealed to the court of appeals, even when no notice of appeal was filed.” Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004). Federal Rule of Appellate Procedure 4(b)(A) provides that a defendant's notice of appeal must be filed in the district court within fourteen days of the entry of judgment. Because she did not appeal her conviction or sentence, Petitioner's judgment became final on December 26, 2013. (See Doc. 211.) Petitioner did not file the instant motion until November 15, 2016-almost two years after her judgment became final.[1] (See Doc. 237.) Accordingly, Petitioner's motion is untimely.[2]

         B. Merits ...


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