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Hernandez-Mendoza v. United States

United States District Court, D. South Dakota, Western Division

October 28, 2015

JESE HERNANDEZ-MENDOZA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER FOR SERVICE AND ORDER TO SHOW CAUSE

VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

Movant, Jese Hernandez-Mendoza, an inmate at the federal Taft Correctional Institution in Taft, California, has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The pending matter was referred to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014 standing order of the Honorable Karen E. Schreier, district judge.

FACTS

Mr. Hernandez-Mendoza was found guilty by a jury of conspiracy to distribute a controlled substance (Count I) and two counts of possession with intent to distribute a controlled substance (Counts II and III). He was sentenced on December 1, 2008, to 121 months’ imprisonment.

Mr. Hernandez-Mendoza filed a direct appeal and the Eighth Circuit Court of Appeals affirmed. A mandate was issued on July 15, 2010. Mr. Hernandez- Mendoza appealed to the United States Supreme Court and his petition for a writ of certiorari was denied on February 28, 2011.

On November 19, 2014, Mr. Hernandez-Mendoza filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). The motion was granted on January 5, 2015, and an amended judgment was entered setting forth a sentence of 120 months’ imprisonment on each count, all such counts to run concurrently, effective November 1, 2015. Mr. Hernandez-Mendoza filed this motion on October 26, 2015.

DISCUSSION

Rule 4 of the Rules Government Section 2255 Proceedings states in pertinent part:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

Consistent with the duty imposed on this court by Rule 4 above, the court has examined Mr. Hernandez-Mendoza’s § 2255 motion. The issue of whether Mr. Hernandez-Mendoza’s motion was timely made is apparent from a reading of the motion. The statute of limitations for § 2255 motions is as follows:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run 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 ...

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