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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. CASE NO. 1:03-cr-00055-MP -AK

SANTANA MACEDO,

Defendant.

_____________________________/

O R D E R

This matter is before the Court on Doc. 70, Motion to Set Aside Sentence or Vacate Plea

and Sentence, and Doc. 72, a nearly-identical Motion to Vacate, both by Santana Macedo. 

Defendant argues that his guilty plea should be set aside because of his prior counsel’s failure to

make him aware that he may be deported as a consequence of pleading guilty to a felony drug

trafficking conviction. The United States has responded to the motion, Doc. 71, and this Court

now reviews it. 

A one-year period of limitation shall apply to a motion under 28 U.S.C. § 2255 such as

this one. 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 the exercise of due diligence

28 U.S.C. § 2255(f). 
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Case No: 1:03-cr-00055-MP -AK

As to the first prong of § 2255(f), Defendant’s conviction became final on May 12, 2004,

more than one year ago, Doc. 53. As to the second prong, Mr. Macedo alleges no government

impediment to filing a post-conviction motion. As to the fourth prong, Defendant was notified

that he may be subject to deportation in his Plea Agreement in 2004, more than a year ago. Doc.

71, Ex. C. Defendant was also notified of the possibility of his deportation by an Immigration

Detainer on June 5, 2006, more than one year ago. Doc. 71, Ex. G. 

As to the third prong, the Sixth Amendment right to counsel is the right to effective

assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The manner of

challenging the effectiveness of one’s counsel was established more than one year ago, in

Strickland v. Washington, 466 U.S. 668 (1984). Mr. Macedo’s claim that his counsel was

ineffective is not made pursuant, therefore, to a new constitutional right. The rule that failure to

advise of deportation consequences of a guilty plea is per se ineffective assistance, established in

Padilla v. Kentucky, 130 S.Ct. 1473 (2010), was not made retroactive to cases on collateral

review. 

Therefore, Defendant’s motions, filed on December 1, 2010 and December 14, 2010,

have not been made within one year of any of the qualifying events described in 28 U.S.C. §

2255(f). They are untimely, and may not be granted. Accordingly, Motion to Set Aside

Sentence or Vacate Plea and Sentence, Doc. 70, and Motion to Vacate, Doc. 72, are both

DENIED. 

DONE AND ORDERED this 15th day of December, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge