Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LOPEZ v. U.S.

November 2, 2005.

JOSE LOPEZ, Petitioner,
v.
UNITED STATES of AMERICA, Respondent.



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

I. Introduction

  Petitioner, Jose Lopez, was sentenced by the undersigned to a term of imprisonment of 114 months following the execution of a written plea agreement, under which Petitioner pled guilty to one count of conspiracy to distribute and possession with intent to distribute more than 5 kilograms of cocaine and 50 grams of cocaine base in violation of 21 U.S.C. § 846. Petitioner now brings this pro se habeas corpus petition pursuant to 28 U.S.C. § 2255, arguing that (1) his trial counsel was constitutionally ineffective; and (2) he is entitled to resentencing in light of the recent Supreme Court decision in United States v. Booker. 125 S. Ct. 738 (2005). The petition will be denied in its entirety because the claims are procedurally barred, and because Petitioner knowingly and voluntarily waived his right to file a habeas petition. In any event, for the reasons expressed below, both of Petitioner's claims fail on the merits.

  II. Background

  On June 5, 2001, a federal grand jury sitting in Camden returned a one-count Indictment against Petitioner and his coconspirators, charging Petitioner with conspiracy to distribute and possession with intent to distribute more than 50 grams of cocaine base and more than 5 kilograms of powder cocaine, in violation of 21 U.S.C. § 846. Petitioner pled guilty to the one-count Indictment before the undersigned on July 24, 2001, pursuant to a written plea agreement. The plea agreement provided that Petitioner was accountable for more than 1.5 kilograms of crack cocaine and for at least 15 kilograms, but less than 50 kilograms, of powder cocaine, resulting in a Base Offense Level of 38 pursuant to U.S.S.G. § 2D1.1(c)(1). The parties stipulated that Petitioner would receive a 3 level reduction for acceptance of responsibility pursuant to U.S.S.G. §§ 3E1.1(a) and 3E1.1(b)(2), resulting in a total offense level of 35. Additionally, under the plea agreement Petitioner voluntarily waived the right to collaterally attack the sentencing court's determination under 28 U.S.C. § 2255, provided that the total offense level determined by the Court was equal to or less than an offense level of 35.*fn1

  Thereafter, a Presentence Investigation Report was prepared by a United States Probation Officer, which corresponded with the parties' stipulation of a Base Offense Level of 38, with a 3 level reduction for acceptance of responsibility. Additionally, the Presentence Report found that Petitioner met the criteria of a career offender with a criminal history category of VI. These calculations resulted in a guideline range of imprisonment of 292 to 365 months.

  On May 30, 2002, a sentencing hearing was conducted by the undersigned. Petitioner did not object to any of the findings contained in the Presentence Investigation Report. The Court adopted those findings, thereby establishing a guideline range of 292 to 365 months imprisonment. The government filed a motion for a downward departure pursuant to U.S.S.G. § 5K1.1 due to Petitioner's substantial assistance in the investigation. The Court granted the motion and sentenced Petitioner to 144 months imprisonment. The Judgment and Conviction Order was entered on May 31, 2002.

  Petitioner never filed a direct appeal of his conviction or sentence. On August 4, 2004, Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. For the reasons now explained, the petition will be denied in its entirety.

  III. Discussion

  A. Procedural Bar

  Petitioner is procedurally barred from filing the current habeas petition. A one-year period of limitation applies to motions made under 28 U.S.C. § 2255. The limitation period runs 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 the exercise of due diligence.
28 U.S.C. § 2255. In this case, there was no unconstitutional governmental action preventing Petitioner from bringing an appeal, and no new facts have arisen to support Petitioner's claim. Additionally, although Petitioner argues that his sentence should be vacated in light of United States v. Booker, 125 S. Ct. 738 (2005), the rule of law announced by the Supreme Court in Booker does not apply retroactively. Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005). Therefore, the Court may consider the current petition only if it was made within one year of the date on which Petitioner's conviction became final. As the following discussion explains, it was not.

  A conviction becomes final within the meaning of § 2255 on the later of (1) the date on which the Supreme Court affirms the conviction and sentence, or denies the defendant's petition for certiorari; or (2) the date on which the defendant's time for filing a timely petition for certiorari review expires. Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). Under Supreme Court Rule 13, a defendant has 90 days from the entry of judgment or denial of a rehearing petition in which to file a petition for writ of certiorari. Sup. Ct. R. 13.

  In this case, Petitioner never filed a direct appeal of his conviction or sentence and, thus, his conviction became final on August 31, 2002, 90 days after the entry of judgment on May 31, 2002. Therefore, Petitioner had until August 31, 2003 to file a petition under § 2255. However, Petitioner filed the current petition on August 4, 2004, nearly one year after the statute of limitations expired. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.