Filed: Dec. 23, 2016
Latest Update: Dec. 23, 2016
Summary: REPORT AND RECOMMENDATION G. R. SMITH , Magistrate Judge . Joaquin Mendez-Hernandez moves to vacate, set aside, or correct his sentence, under 28 U.S.C. 2255. CR413-004 doc. 902. 1 Preliminary review under Rule 4(b) of the Rules Governing 2255 Motions shows that his motion is time-barred. Mendez-Hernandez pled guilty on February 19, 2014 to conspiracy to engage in sex trafficking. Doc. 775 at 1. He had one year from the date that his conviction became final to seek 2255 relief. 28
Summary: REPORT AND RECOMMENDATION G. R. SMITH , Magistrate Judge . Joaquin Mendez-Hernandez moves to vacate, set aside, or correct his sentence, under 28 U.S.C. 2255. CR413-004 doc. 902. 1 Preliminary review under Rule 4(b) of the Rules Governing 2255 Motions shows that his motion is time-barred. Mendez-Hernandez pled guilty on February 19, 2014 to conspiracy to engage in sex trafficking. Doc. 775 at 1. He had one year from the date that his conviction became final to seek 2255 relief. 28 U..
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REPORT AND RECOMMENDATION
G. R. SMITH, Magistrate Judge.
Joaquin Mendez-Hernandez moves to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255. CR413-004 doc. 902.1 Preliminary review under Rule 4(b) of the Rules Governing § 2255 Motions shows that his motion is time-barred.
Mendez-Hernandez pled guilty on February 19, 2014 to conspiracy to engage in sex trafficking. Doc. 775 at 1. He had one year from the date that his conviction became final to seek § 2255 relief. 28 U.S.C. § 2255(f). He didn't appeal his conviction. His counsel moved for additional time to appeal, which the Court denied. Doc. 799, reconsideration denied, doc. 875 at 3, adopted doc. 879; see also doc. 875 at 1 (recounting procedural history). His judgment became final, therefore, when the time for filing his appeal expired. See Dauphin v. United States, 604 F. App'x 814, 817 (11th Cir. 2015) (citing Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir. 2000)). That happened 14 days after the entry of the judgment. Fed. R. App. P. 4(b)(1)(A)(i). The §2255(f) clock thus began to run on March 5, 2014 and expired on March 5, 2015. Mendez-Hernandez didn't file his § 2255 motion until December 6, 20162 — 642 days late. He offers no explanation or excuse for its untimeliness. See doc. 57 at 13.3 His motion is thus untimely and should be DENIED.
Because Mendez-Hernandez has not made a substantial showing of the denial of a constitutional right, the Court should also DENY him a Certificate of Appealability (COA). See 28 U.S.C. § 2253(c)(2); Rule 11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. § 2255 ("The district court must issue or deny a [COA] when it enters a final order adverse to the applicant."). Any motion for leave to appeal in forma pauperis would therefore be moot.
This Report and Recommendation (R&R) is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of service, any party may file written Fed. R. Civ. P. 72(b)(2) Objections to this R&R and serve a copy on all parties. The document should be captioned "Objections to Magistrate Judge's Report and Recommendations." Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge.
After the Rule 72(b)(2) Objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge's findings and recommendation pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that their failure to timely file Objections will result in the waiver of certain rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp., 648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App'x 542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED.
