United States District Court, D. South Dakota, Western Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY, Magistrate Judge.
Movant, Jese Hernandez-Mendoza, a federal inmate 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. Previously, the court ordered the parties to file briefs showing cause why Mr. Hernandez-Mendoza's motion should not be dismissed as untimely pursuant to 28 U.S.C. § 2255(f). Mr. Hernandez-Mendoza did not file a brief. The government responded the motion should be dismissed as untimely.
Mr. Hernandez-Mendoza was convicted of conspiracy to distribute a controlled substance and two counts of possession with intent to distribute a controlled substance. He was sentenced on December 1, 2008, to 121 months' imprisonment. Mr. Hernandez-Mendoza appealed and the Eighth Circuit Court of Appeals affirmed. A mandate was issued on July 15, 2010. Mr. Hernandez-Mendoza petitioner the United States Supreme Court for a writ of certiorari. The Court denied the petition 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 the instant§ 2255 motion on October 26, 2015.
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 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 ...