Filed: Jun. 20, 2014
Latest Update: Jun. 20, 2014
Summary: ORDER ROGER L. HUNT, District Judge. Before the Court is Defendant Patrick Johnson's Motion to Vacate under 28 U.S.C. 2255. (#112, filed on June 13, 2014 ). For the reasons discussed below, the motion is denied. BACKGROUND Defendant was indicted on a One Count Criminal Indictment (#1) charging him with Possession with Intent to Distribute a Controlled Substance in violation of 18 U.S.C. 841. Defendant ultimately entered into a plea agreement and the Court sentenced him to a term of 188 m
Summary: ORDER ROGER L. HUNT, District Judge. Before the Court is Defendant Patrick Johnson's Motion to Vacate under 28 U.S.C. 2255. (#112, filed on June 13, 2014 ). For the reasons discussed below, the motion is denied. BACKGROUND Defendant was indicted on a One Count Criminal Indictment (#1) charging him with Possession with Intent to Distribute a Controlled Substance in violation of 18 U.S.C. 841. Defendant ultimately entered into a plea agreement and the Court sentenced him to a term of 188 mo..
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ORDER
ROGER L. HUNT, District Judge.
Before the Court is Defendant Patrick Johnson's Motion to Vacate under 28 U.S.C. § 2255. (#112, filed on June 13, 2014 ). For the reasons discussed below, the motion is denied.
BACKGROUND
Defendant was indicted on a One Count Criminal Indictment (#1) charging him with Possession with Intent to Distribute a Controlled Substance in violation of 18 U.S.C. § 841. Defendant ultimately entered into a plea agreement and the Court sentenced him to a term of 188 months. (#75, Nov. 19, 2007). This sentence was later upheld by the United States Court of Appeals for the Ninth Circuit. (#92, Mar. 4, 2010). In October 2010, Defendant filed a habeas corpus petition pursuant to 28 U.S.C. § 2255, asking the Court to vacate his sentence on several constitutional bases. (#98, filed on Oct. 12, 2010). The Court denied the motion, (#107, Mar. 9, 2011), and denied a certificate of appealability. (#109, Apr. 25, 2011). Defendant then sought a certificate of appealability from the Ninth Circuit, (#108, Apr. 18, 2011), who also denied Defendant's request. (#111, Jan. 20, 2012). Now, Defendant's brings this second habeas corpus petition pursuant to 28 U.S.C. § 2255.
DISCUSSION
Defendant's § 2255 motion is improper and time-barred. First, under 28 U.S.C. § 2255(h), "a second or successive motion must be certified . . . by a panel of the appropriate court of appeals," before it can be reviewed by the district court. As Defendant has not sought or obtained permission to file this second § 2255 motion, the Court may not consider the petition. Second, under 28 U.S.C. § 2255(f)(1), a petitioner has one year from "the date on which the judgment of conviction becomes final" to bring a motion under § 2255. As Defendant's judgment of conviction became final in 2007, and this motion is being brought nearly 7 years later, Defendant's motion is time-barred. Therefore, for these two reasons, the motion must be denied.
CONCLUSION
Accordingly, and for good cause appearing,
IT IS HEREBY ORDERED that Defendant Patrick Johnson's Motion to Vacate under 28 U.S.C. § 2255. (#112, filed on June 13, 2014 ) is DENIED.
