The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court
Before the Court is Lidia Reyes' motion to vacate pursuant to 28 U.S.C. § 2255. (Doc. No. 848.) Petitioner seeks to vacate her sentence on the grounds that she was assured, in accepting her plea agreement, that the longest sentence she would receive would be 60 months imprisonment, when in fact, she was sentenced to 135 months. Because the statute of limitations for 28 U.S.C. § 2255 has expired and her motion is clearly precluded by facts on the record, Petitioner's motion to vacate will be denied without a hearing.
Petitioner Reyes was arrested in Harrisburg, Pennsylvania in connection with a heroin ring conspiracy. (Doc. Nos. 515-1; 515-2.) Pursuant to a written plea agreement, a guilty plea was entered on November 15, 2004 to a one-count information charging Petitioner with conspiracy to distribute 100 or more grams of heroin; all other counts were dismissed. (Doc. Nos. 518, 519.) On March 14, 2005, Petitioner was sentenced to 135 months in prison. (Doc. No. 652.)
The plea agreement states the statutory minimum sentence as 5 years, or 60 months. It states, incorrectly, the maximum sentence as 20 years. At the sentencing hearing, it was discovered that the maximum sentence for possession with intent to distribute more than 100 grams of heroin is 40 years. (Doc. No. 858-2.) Reyes was advised of this and given time to discuss the issue with counsel during the sentencing hearing. (Id.) Further, the Court conducted a thorough Rule 11 colloquy to confirm the plea agreement, paying particular attention to the sentencing aspect of the case and emphasizing that the agreement did not bind the Court. (Id.)
By order dated February 28, 2006, the Third Circuit Court of Appeals held that the sentence was appropriate in that it was at the lower end of the range indicated by the sentencing guidelines, considering a two-level reduction. (Doc. No. 755.) Now, Petitioner argues that, despite the plea colloquy explaining that 60 months was the statutory minimum penalty and 40 years was the maximum, she was assured that she would not be sentenced to more than 60 months.
1. Statute of Limitations
A motion to vacate, set aside or correct a sentence is subject to a one-year statute of limitations running from the latest of four specified dates. Of the four dates, the only one relevant in this case is the first: "the date on which the judgment of conviction becomes final."
28 U.S.C. § 2255(f)(1). For federal criminal defendants who do not file a petition for certiorari with the Supreme Court on direct review, section 2255's one year limitation period begins to run when the time for seeking such review expires. Clay v. United States, 537 U.S. 522 (2003) ("For the purpose of starting the clock on § 2255's one-year limitation period, we hold, a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction."). A petition for certiorari generally must be filed within 90 days after the date of the judgment or order sought to be reviewed. Sup. Ct. Rule 13. On February 28, 2006, the Third Circuit issued a judgment affirming Petitioner's sentence. (Doc. No. 755.) Ninety days from the date of that order results in the statute of limitations period beginning to run on May 28, 2006. The instant motion was not filed until December 7, 2007, roughly six months beyond the time the statute of limitations allows. Accordingly, Petitioner's section 2255 motion is time-barred.
In addition to her failure to file within the prescribed statute of limitations, the Court finds that petitioner's claim fails on the merits, as well. An evidentiary hearing is not required if the motion and record conclusively show that the prisoner is not entitled to relief. 28 U.S.C. § 2255; United States v. Booth, 432 F.3d 542 (3d Cir. 2005). Such is the case here.
The transcript of the change of plea proceedings from November 15, 2004, demonstrates a clear explanation to petitioner that the minimum sentence for her plea was 60 months, but that despite her guilty plea, there was no promise that the Court would entertain all of the Government's recommendations or award her the minimum sentence. (Doc. No. 858-2, 8.) After hearing a summary of the plea agreement, the Court confirmed that the Petitioner had signed ...