[CRIM. NO. 97-28-06 (JBS)]
The opinion of the court was delivered by: Simandle, District Judge:
HONORABLE JEROME B. SIMANDLE
This matter comes before the Court on petitioner Javier Restrepo's application for post-conviction relief pursuant to 28 U.S.C. § 2255. Upon petitioner's October 6, 1997, plea of guilty to the charge of conspiring to possess and distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1), and pursuant to a downward adjustment recognizing his minor role in the conspiracy, as well as a departure under the "safety valve" provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, this Court, on January 23, 1998, sentenced petitioner to serve fifty-seven months of imprisonment.
In the present application, petitioner asserts two grounds for § 2255 relief. First, petitioner claims that he was denied effective assistance of counsel in violation of the Sixth Amendment. Second, petitioner claims that this Court erred when it denied petitioner a further reduction in sentencing by finding that his role in the conspiracy was minor, as opposed to minimal. Petitioner requests that this Court vacate, set aside, or otherwise correct the fifty-seven month sentence imposed upon petitioner pursuant to his conviction. Petitioner also requests that the court hold an evidentiary hearing to review his claims.This petition was not filed until March 1, 1999, on the day it was received by the Clerk's office. The petition is thus untimely because it was not filed within one year of the date when the judgment of conviction became final as required by 28 U.S.C. § 2255, namely January 23, 1998. Moreover, even if petitioner's delay in filing is somehow excused, this Court finds petitioner's claims for § 2255 relief to be without merit, and as such, now denies the petitioner's requests for an evidentiary hearing and for sentencing relief, for the following reasons.
Under 28 U.S.C. § 2255, a one-year limitation applies to a motion for § 2255 relief. The statute provides that this limitation period shall run from the latest of-
(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 exercise of due diligence. 28 U.S.C. § 2255.
Restrepo's judgment of conviction became final on January 23, 1998. His time to file for § 2255 relief expired one year later (in the absence of any exceptional circumstances listed above) on January 23, 1999. Petitioner dated his petition on February 25, 1999, and it was filed with Clerk of this Court on March 1, 1999. Even if the assumption is made that he mailed it from prison on February 25, 1999, and that the "mailbox rule" recognizes that as the filing date for purposes of this statute of limitations, the petition was more than one month out of time. The petition will therefore be dismissed for untimeliness under § 2255.
Although the petition is untimely on its face, the Court has nonetheless considered the grounds raised in the petition for § 2255 relief in the event that petitioner was entitled to some sort ...