The opinion of the court was delivered by: Irenas, Senior District Court Judge
Presently before the Court is Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Petitioner bases his motion on one claim: that his Sixth Amendment right to effective assistance of counsel was violated when his attorney failed to object to this Court's imposition of a 130-month sentence upon Petitioner's guilty plea. For the reasons set forth below, Petitioner's application will be dismissed as time-barred.
Petitioner, Eddie J. Rodriguez (hereinafter "Petitioner") pled guilty to 18 U.S.C. § 2113(a), bank robbery, and on January 12, 2004, he was sentenced to a prison term of 130 months.
On or about January 8, 2003, Petitioner entered the Hudson United Bank, located at 2194 Haddonfield-Berlin Road, in Camden County, New Jersey. He approached a bank employee, brandished a metallic BB gun, took $10,448.00 in U.S. currency from the teller's drawer, and placed the currency in a plastic bag. Immediately after the robbery, the Cherry Hill Police Department transmitted a description of Petitioner and his vehicle to all available officers.
Petitioner was stopped a short time later as a passenger in a grey Jeep Grand Cherokee driven by his girlfriend, Sonia Santiago. The traffic stop occurred approximately three to four miles from the location of the robbery. Arresting officers recovered $10,448.00 and the metallic BB gun from Petitioner inside the Jeep.
Petitioner was charged with knowingly and willfully taking by force, violence, and intimidation from employees of Hudson United Bank approximately $10,500.00 belonging to, and in the care, custody, control, management, and possession of that institution, in violation of 18 U.S.C. § 2113(a) and (2).
On September 12, 2003, Petitioner pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a). On January 12, 2004, this Court sentenced Petitioner to 130 months imprisonment. No direct appeal was taken.
This Section 2255 Motion comes after Petitioner's Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2), which this Court denied on May 2, 2005. Though couched this time as an ineffective assistance of counsel claim, Petitioner's present motion seeks to reassert the same basic attack on his sentence that he asserted in his previous motion: that United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004); and Apprendi v. New Jersey, 530 U.S. 466 (2000) require that his current sentence be vacated.
Section 2255 provides, in pertinent part, that:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255 (2000). Thus, Petitioner is entitled to relief only if he can establish that he is in custody in violation of federal law or the Constitution.
A one-year period of limitation applies to Section 2255 motions. Pursuant to Paragraph 6 of Section 2255, the limitation ...