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United States v. Najera

United States District Court, W.D. Virginia, Roanoke Division

April 28, 2017

UNITED STATES OF AMERICA
v.
EMMA LETICIA NAJERA, Defendant. Civil Action No. 7:17CV81225

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge.

         Emma 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.

         Background

         Najera 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.

         On 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 sentence.

         On January 3, 2017, Najera moved to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255.[1] Najera claims that her attorney provided ineffective assistance because of a conflict of interest.

         On 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.

         Discussion

         A 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 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 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. Because ...


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