Filed: Jan. 03, 2018
Latest Update: Jan. 03, 2018
Summary: ORDER DENYING 2255 MOTION AS UNTIMELY EDWARD F. SHEA , Senior District Judge . Before the Court is Defendant Erasmo Birrueta Lemus' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255. 1 ECF No. 229. Based on the Court's prior order, ECF No. 230, the Court finds his Motion is untimely and therefore denies the relief requested therein. On October 16, 2017, Mr. Lemus filed the instant Motion, ECF No. 229, in which he asks the Court to vacate his drug conviction b
Summary: ORDER DENYING 2255 MOTION AS UNTIMELY EDWARD F. SHEA , Senior District Judge . Before the Court is Defendant Erasmo Birrueta Lemus' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255. 1 ECF No. 229. Based on the Court's prior order, ECF No. 230, the Court finds his Motion is untimely and therefore denies the relief requested therein. On October 16, 2017, Mr. Lemus filed the instant Motion, ECF No. 229, in which he asks the Court to vacate his drug conviction ba..
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ORDER DENYING § 2255 MOTION AS UNTIMELY
EDWARD F. SHEA, Senior District Judge.
Before the Court is Defendant Erasmo Birrueta Lemus' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.1 ECF No. 229. Based on the Court's prior order, ECF No. 230, the Court finds his Motion is untimely and therefore denies the relief requested therein.
On October 16, 2017, Mr. Lemus filed the instant Motion, ECF No. 229, in which he asks the Court to vacate his drug conviction based on a claim of ineffective assistance of counsel. Mr. Lemus argues that a combination of ineffective legal assistance and language barriers resulted in him inadvertently forfeiting his appeal rights by signing the plea agreement.
On October 24, 2017, the Court conducted a preliminary review of Mr. Lemus' Motion. In the resulting order, ECF No. 230, after setting forth the relevant facts and procedural history as well as the applicable law, the Court advised Mr. Lemus that his Motion appeared to be untimely. See ECF No. 230. The Court therefore provided Mr. Lemus with the opportunity to either withdraw or supplement his Motion to explain why it should be considered timely. See ECF No. 230. Because Mr. Lemus has not done so — and for the reasons stated in the Court's previous order, ECF No. 230 — the Court denies his Motion as untimely. See 28 U.S.C. § 2255(f).
Accordingly, IT IS HEREBY ORDERED:
1. Defendant Erasmo Birrueta Lemus' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, ECF No. 229, is DENIED as untimely.
2. The Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c) (allowing such a certificate "only if the applicant has made a substantial showing of the denial of a constitutional right").
3. The Clerk's Office is DIRECTED to CLOSE this file.
4. The Clerk's Office is DIRECTED to CLOSE the corresponding civil case, No. 4:17-CV-05167-EFS.
IT IS SO ORDERED. The Clerk's Office is directed to enter this Order and provide a copy to Mr. Lemus and the United States Attorney's Office.
