United States District Court, D. New Jersey
Ricardo Rivera, Jr., Petitioner, pro se
L. HILLMAN UNITED STATES DISTRICT JUDGE.
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.
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
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.
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
(1) the date on which the judgment of conviction becomes
(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
(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).
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. § 2255(f)(1). The Motion