United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge.
Leticia Najera, a federal inmate proceeding pro se, filed
this action as a motion to vacate, set aside, or correct her
sentence under 28 U.S.C. § 2255. The government has
filed a motion to dismiss, to which Najera has responded,
making the matter ripe for consideration. For the reasons
that follow, the government's motion to dismiss will be
granted and Najera's motion to vacate will be denied.
was indicted by a federal grand jury on August 23, 2012.
Count One of the indictment charged her with conspiracy to
distribute and possess with intent to distribute 500 grams or
more of a mixture or substance containing methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A),
and 846. Najera entered a plea of guilty to that count on
December 11, 2014.
March 25, 2015, the court sentenced Najera to a term of
imprisonment of 121 months. The criminal judgment was entered
that same day. Najera did not appeal her conviction or
January 3, 2017, Najera moved to vacate, set aside, or
correct her sentence under 28 U.S.C. § 2255. Najera
claims that her attorney provided ineffective assistance
because of a conflict of interest.
February 2, 2017, the government moved to dismiss
Najera's § 2255 motion as untimely. Najera filed a
response to the government's motion on February 24, 2017.
The matter is now ripe for review.
one-year period of limitation applies to motions filed under
28 U.S.C. § 2255. 28 U.S.C. § 2255(f). The one-year
period runs from the latest of the following dates:
(1) the date on which the judgment of conviction becomes
(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
(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
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
Id. In this case, Najera concedes that her motion
was not filed within one year of the date on which her
judgment of conviction became final. As indicated above, the
criminal judgment was entered on March 25, 2015. Her
conviction became final fourteen days later, on April 8,
2015, when her opportunity to note an appeal expired.
See Fed. R. App. P. 4(b)(1)(A); see also
UnitedStates v. Diallo. 581 F.App'x 226,
227 (4th Cir. 2014). Under § 2255(f)(1), Najera had one
year from that date to file a timely § 2255 motion.