United States District Court, E.D. Virginia, Alexandria Division
LIAM O'GRADY UNITED STATES DISTRICT JUDGE
This matter comes before the Court on Defendant Juan de Dios Garcia Mercado's Motion to Vacate, set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Mercado seeks to have his sentence set aside on three different grounds: (1) his counsel failed to file a notice of appeal, (2) his counsel acted contrary to his wishes and failed to determine if he wanted to file an appeal, and (3) his counsel compelled him to withdraw a previous § 2255 motion he had filed. The government opposes the motion on the grounds that it is untimely and lacks merit. For the reasons outlined below, the Court finds the Motion is both untimely and unmeritorious.
In November of 2011, Mercado was charged in a five-count indictment along with sixteen codefendants. On March 26, 2013, Mercado entered a guilty plea to Count One of the indictment, which charged him with Conspiracy to Manufacture or Distribute Five Kilograms or More of Cocaine for Unlawful Importation into the United States. Dkt. No. 212. The Plea Agreement included a waiver of appeal, and stated that the government would recommend an offense level of 35, with possible Safety Valve eligibility under Sections 5C1.2 and 2Dl.l(b)(l 1). Dkt. No. 213. The government reserved the possibility of a further reduction of Mercado's sentence under Rule 35(b) of the Federal Rules of Criminal Procedure based on "substantial assistance." Id. Mercado reviewed the Plea Agreement with his attorney, Michael Arif, prior to entering the plea.
On June 13, 2013, this Count found the petitioner Safety Valve eligible, applied the corresponding two level reduction, and sentenced Mercado to 130 months imprisonment and five years of supervised release. Dkt. No. 263. This sentence was five months under the Sentencing Guideline Range. Mercado affirmed that he was satisfied with his counsel's representation and acknowledged waiving his rights to appeal. The Judgment and Commitment Order was entered on June 14, 2013. Dkt. No. 266. In accordance with the plea agreement, Mercado did not file an appeal.
On May 20, 2014, Mercado filed a pro se motion under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. Dkt. No. 389. The motion was based on four allegations: that counsel failed to create and file a sentencing memorandum, failed to review the Presentence Investigation Report with Mercado, failed to negotiate a plea agreement, and failed to provide Mercado with a notice of forfeiture. Id. Arif sent Garcia Mercado a letter on June 12, 2014. He advised Mercado that, under the terms of the Plea Agreement, the defendant would likely lose the possibility of a further reduction of his sentence under Rule 35(b) if he continued pursuing the § 2255 motion. On June 24, 2014, Mercado filed a motion to dismiss his § 2255 motion without prejudice. Dkt. No. 405. The court granted the motion on August 27, 2014. Dkt. No. 412.
Mercado filed the pending motion on June 1, 2015. Dkt. No. 468. The United States responded, after obtaining an extension of time to respond, on August 6, 2015, and included an affidavit from Michael Arif. Defendant has not filed a reply brief.
The government opposes the Motion on two grounds: first, the Motion is untimely, and second, the Motion is unmeritorious. The Court will address each argument in turn.
A. Whether Mercado's S 2255 Motion is Timely
A one year time limit applies to all § 2255 motions. 28 U.S.C. § 2255(0; Clay v. United States, 537 U.S. 522, 524 (2003). All § 2255 motions must be filed within one year of the latest of the following four dates:
(1) the date on which the judgment of conviction becomes final;
(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 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 made retroactively ...