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United State v. Villa-Rico

United States District Court, E.D. Washington

June 13, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
RAFAEL VILLA-RICO, Defendant-Petitioner.

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          THOMAS O. RICE Chief United States District Judge

         BEFORE 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.

         BACKGROUND

         On July 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.

         Defendant waived his right to appeal (ECF No. 152 at ¶ 18) and no direct appeal was filed.

         On May 7, 2017, Defendant filed the instant motions.

         DISCUSSION

         A. Motion to Vacate, Set Aside or Correct Sentence

         The 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 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). 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 ...


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