IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

ABILENE DIVISION

JOEL PLASCENCIA, )

)

Movant, )

)

V. ) CIVIL ACTION NO.

) 1:05-CV-111-C

UNITED STATES OF AMERICA, ) (1:03-CR-035-C)

)

Respondent. )

ORDER

The Court has considered the Motion Under 28 U.S.C. Section 2255, to Vacate, Set

Aside, or Correct Sentence by a Person in Federal Custody filed by Joel Plascencia (Movant).

Movant entered a plea of guilty on August 27, 2003, to conspiracy to distribute and

possess with intent to distribute more than 5 kilograms of cocaine, in violation of 21 U.S.C.

§ 846. He was sentenced on December 22, 2003, to 210 months’ incarceration, a five-year term

of supervised release, and a mandatory special assessment of $100.00. 

Movant’s notice of appeal dated January 15, 2004, was received and filed by the Clerk

on January 21, 2004. The United States Court of Appeals found that the final date for filing a

notice of appeal under Fed. R. App. P. 26(a)(2) was January 12, 2004, and remanded the case

to this Court to determine whether the untimely filing was due to excusable neglect or good

cause. By Order dated April 2, 2004, this Court found that the untimely filing of the notice of

appeal was not due to excusable neglect and that Movant had not shown good cause for his

failure to file a timely notice of appeal. Upon return to the Fifth Circuit, the appellate court

 

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found that “a timely notice of appeal is a mandatory precondition to the exercise of appellate

jurisdiction,” and dismissed Movant’s appeal on June 9, 2004.

Movant’s § 2255 motion and his cover letter to the Clerk are dated June 15, 2005, and

the motion was received and filed by the Clerk on June 22, 2005.

The Antiterrorism and Effective Death Penalty Act (AEDPA) established a one-year

statute of limitations within which a § 2255 motion must be filed. This limitation period runs

from the latest of

a. the date on which the judgment of conviction

becomes final;

b. 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;

c. the date on which the right asserted was initially

recognized by the Supreme Court and made

retroactively applicable to cases on collateral

review; or

d. the date on which the facts supporting the claim or

claims presented could have been discovered

through the exercise of due diligence.

The district court can raise the statute of limitations under AEDPA sua sponte. Kiser v.

Johnson, 163 F.3d 326 (5th Cir. 1999).

The Court entered its judgment on December 22, 2003. When a defendant does not file

a direct appeal, his conviction becomes final ten (10) days after the trial court entered the

judgment of conviction. See Fed. R. App. P. 4(b); Moshier v. United States, 402 F.3d 116, 117

 

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(2nd Cir. 2005) (“an unappealed federal criminal judgment becomes final when the time for

filing a direct appeal expires”); Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir.

2004) (“an unappealed federal criminal judgment becomes final ten days after it is entered” for

purposes of § 2255 motions); Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) (“If a

defendant does not pursue a timely direct appeal to the court of appeals, his or her conviction and

sentence become final, and the statute of limitations begins to run, on the date on which the time

for filing such an appeal expired.”). 

The Fifth Circuit found that the last day for filing a timely notice of appeal was at the

latest January 12, 2004, pursuant to Federal Rule Appellate Procedure 26(a)(2); therefore,

Movant’s conviction became final on January 12, 2004. Movant was required to file his § 2255

motion on or before January 12, 2005. His motion is dated June 12, 2005, and it was filed by

the Clerk on June 22, 2005; therefore, his § 2255 motion was filed outside the one-year

limitation period.

For the reasons stated above, Movant’s Motion to Vacate, Set Aside, or Correct Sentence

filed under 28 U.S.C. § 2255 is DENIED and this case is dismissed with prejudice.

All relief not expressly granted is denied and any pending motions are denied.

SO ORDERED this 1st day of September, 2005.

_________________________________

SAM R. CUMMINGS

UNITED STATES DISTRICT COURT

 

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