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Rivera v. United States

United States District Court, D. New Jersey

November 2, 2018

RICARDO RIVERA, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Ricardo Rivera, Jr., Petitioner, pro se

          OPINION

          NOEL L. HILLMAN UNITED STATES DISTRICT JUDGE.

         Petitioner Ricardo Rivera, Jr., a prisoner presently confined at the United States Penitentiary at Hazelton in Bruceton Mill, West Virginia, has filed an Amended Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. ECF No. 5. At this time, the Court will conduct a preliminary review of the Amended Motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings.

         BACKGROUND

         On September 21, 2007, Petitioner was convicted of possessing a firearm in violation of 18 U.S.C. § 922(g)(1). See ECF No. 5 at 1; see also No. 06-cr-849, ECF No. 18 (judgment of conviction). Petitioner did not file an appeal.

         Over a decade later, Petitioner filed the initial § 2255 Motion on March 16, 2018. See ECF No. 1. The Motion was administratively terminated with the right to reopen because the Motion was not on the form required for motions pursuant to 28 U.S.C. § 2255 by Local Rule 81.2. See ECF Nos. 3, 4. Petitioner has since filed an Amended Motion on the correct form. See ECF No. 5. In the Motion, Petitioner alleges ineffective assistance of counsel, prosecutorial misconduct related to his pre-sentence investigation report, and also seeks to challenge his state court convictions. See ECF No. 5 at 4-9.

         TIMELINESS

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), petitions filed pursuant to 28 U.S.C. § 2255 are subject to a one-year statute of limitations. See 28 U.S.C. §§ 2244(d), 2255(f)(1). Specifically, the one-year 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(f).

         Petitioner did not file a direct appeal of his criminal case. Therefore, his judgment of conviction became final on October 5, 2007. See Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012) (holding that a judgment is determined to be final by the conclusion of direct review, or the expiration of time for seeking such review, including the ninety-day period for filing a petition for writ of certiorari). As a result, unless the statute of limitations was tolled, the statute of limitations would have expired a year later on October 5, 2008. See 28 U.S.C. ยง 2255(f)(1). The Motion was ...


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