United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
ROBERT S. LASNIK, District Judge.
This matter comes before the Court on Petitioner Martin Medina, Jr.'s motion to vacate, correct, or set aside his conviction and sentence pursuant to 28 U.S.C. § 2255 (Dkt. # 1), Petitioner's motion for trial transcripts (Dkt. # 5), Petitioner's motion to continue the noting date (Dkt. # 7), and Petitioner's motion for leave to file late reply in support of his § 2255 motion (Dkt. # 8). Petitioner challenges his conviction of one count of assault in a federal prison and two counts of witness tampering in CR04-00093, his conviction of four counts of distribution of methamphetamine in CR05-00154RSL, and the 188-month sentence imposed by the Court. Dkt. # 1 at 1.
On March 3, 2004, Petitioner, along with four co-defendants, was indicted on one count of conspiracy to distribute cocaine and methamphetamine and four counts of distribution of methamphetamine. CR # 28. A little more than one year later, the grand jury returned a superseding indictment charging Petitioner with four counts of distribution of methamphetamine, one count of assault in a federal prison, and two counts of witness tampering. CR # 165. On April 8, 2005, the Court dismissed without prejudice the charges related to distribution of methamphetamine due to a violation of Petitioner's rights under the Speedy Trial Act, 18 U.S.C. § 3161, et seq.  CR # 182.
One week after the distribution charges were dismissed, Petitioner was indicted in a new case, CR05-00154-RSL, on four counts of distribution of methamphetamine. CR2 # 1. In early June 2005, Petitioner proceeded to back-to-back trials in the two cases against him. A jury found Petitioner guilty of assault in a federal prison and two counts of witness tampering. CR # 255. The following week, Petitioner waived his right to a jury trial, CR2 # 40, and the Court found Petitioner guilty of four counts of distribution of methamphetamine, CR2 # 43. The two cases were consolidated for sentencing purposes. On September 30, 2005, the Court imposed a sentence of 188 months of imprisonment followed by five years of supervised release. CR # 275 at 1-4.
Petitioner's counsel at the time of sentencing filed a notice of appeal in both cases the day Petitioner was sentenced. CR # 271; CR2 # 53. Shortly thereafter, the Ninth Circuit Court of Appeals consolidated the appeals and appointed new counsel for Petitioner. CR2 # 61. The court of appeals heard oral argument on February 6, 2008, and issued an opinion affirming the district court on April 29, 2008. CR # 309-2.
Petitioner filed this § 2255 motion on May 2, 2013. Dkt. # 1. In his motion, Petitioner contends that he is entitled to relief under § 2255 based on the following grounds: (1) the original indictment was "defective, faulty, " (2) the prosecutor failed to disclose evidence favorable to him, (3) he was denied effective assistance of counsel during pre-trial proceedings, at trial, at sentencing, and on appeal, and (4) procedural default due to violations of the Speedy Trial Act. Dkt. # 1 at 5-6.
A motion by a federal prisoner for post conviction relief under 28 U.S.C. § 2255 is subject to a one-year statute of limitation. This one-year limitation period runs from the latest of the following four events: (1) the date the judgment of conviction becomes final; (2) the date a government-created impediment to filing is removed; (3) the date the right asserted is initially recognized by the Supreme Court, if that right has been newly recognized and made retroactively applicable to cases on collateral review; or (4) the date the facts supporting the claims become discoverable. 28 U.S.C. § 2255(f)(1)-(4).
Here, subsections (f)(1), (f)(2) and (f)(4) are not applicable. First, when a federal prisoner's direct appeal is unsuccessful, "a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Clay v. United States , 537 U.S. 522, 525 (2003). The date by which Petitioner was required to file a petition for certiorari was 90 days after the Ninth Circuit's opinion was issued on April 29, 2008. Sup.Ct. R. 13. Therefore, Petitioner's conviction became final on July 27, 2009. Second, with respect to subsections (f)(2) and (f)(4), Petitioner does not suggest that a government-created impediment was recently removed or that he recently discovered facts that support his claims.
Rather, Petitioner contends that his motion is timely pursuant to subsection (f)(3) based on the Supreme Court's decision in Maples v. Thomas, ___ U.S. ___ , 132 S.Ct. 912, 181 L.Ed.2d 807 (2012). Dkt. # 9 at 1. In Maples, the Supreme Court held that abandonment by post-conviction counsel could provide cause to excuse procedural default of a habeas claim. Maples 132 S.Ct. at 927. Even assuming that the Supreme Court recognized a new right in Maples and it applies retroactively to cases on collateral review, Petitioner's motion is still untimely, as it was not filed within one year of the date on which the right asserted was initially recognized by the Supreme Court. Dodd v. United States , 545 U.S. 353, 357 (2005) ("[28 U.S.C. § 2255(f)(3) unequivocally identifies one, and only one, date from which the 1-year limitation period is measured: the date on which the right asserted was initially recognized by the Supreme Court.'") (quoting 28 U.S.C. § 2255(f)(3)). The Supreme Court issued its decision in Maples on January 18, 2012. Maples , 132 S.Ct. at 912. Because ...