United States District Court, E.D. Washington
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. § 2255
O. RICE Chief United States District Judge
THE COURT are Defendant's Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. 2255 (ECF No. 338),
Application to Proceed In Forma Pauperis (ECF No. 339),
Motion to Appoint Counsel, etc. (ECF No. 340), and Motion for
Discovery, etc. (ECF No. 341). Defendant is proceeding
pro se. The Court has reviewed the record and files
herein, and is fully informed. For the reasons discussed
below, the Court denies Defendant's Motions.
10, 2014, Mr. Villa-Rico pleaded guilty to the Indictment
charging conspiracy to possess with intent to distribute 50
grams or more of pure (actual) methamphetamine in violation
of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(viii).
ECF Nos. 151, 152, 153. On November 7, 2014, Mr. Villa-Rico
was sentenced pursuant to and within the binding Federal Rule
of Criminal Procedure 11(c)(1)(C) plea agreement to 210
months incarceration followed by a 5-year term of supervised
release. ECF No. 259.
waived his right to appeal (ECF No. 152 at ¶ 18) and no
direct appeal was filed.
7, 2017, Defendant filed the instant motions.
Motion to Vacate, Set Aside or Correct Sentence
Court first considers Defendant's motion pursuant to Rule
4 of the Rules Governing Section 2255 Proceedings. Rule 4
provides that the Court “must promptly examine [the
motion]. If it plainly appears . . . that the moving party is
not entitled to relief, the judge must dismiss the motion . .
.” Here, Defendant is plainly not entitled to relief. A
prisoner has one year to file a § 2255 motion, which
time period runs from the latest of the following:
(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). Here, because no appeal was filed,
Defendant's conviction became final 14-days after
Judgment was imposed. See Fed. R. App. P.
4(b)(1)(A); United States v. Gilbert, 807 F.3d 1197,
1199 (9th Cir. 2015) (“if the movant does not pursue a
direct appeal to the Court of Appeals, the conviction ...