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HILDAGO-REYNOSO v. U.S.

United States District Court, S.D. New York


July 7, 2005.

LUIS HILDAGO-REYNOSO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: DENISE COTE, District Judge

MEMORANDUM OPINION AND ORDER

On June 30, 2005, the petitioner, Luis Hidalgo-Reynoso ("Hidalgo-Reynoso") moved to vacate his sentence pursuant to 28 U.S.C. § 2255. Hidalgo-Reynoso entered his guilty plea on December 28, 2001, and was sentenced on April 5, 2002. Hidalgo-Reynoso appealed his conviction but withdrew his appeal on January 15, 2003.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides for a one-year period of limitations for a federal inmate to file a habeas petition under 28 U.S.C. § 2255. The limitations period runs 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.

  A federal prisoner's conviction becomes final under Section 2255 "when the United States Supreme Court denies the prisoner's petition for a writ of certiorari." Green v. United States, 260 F.3d 78, 84 (2d Cir. 2001) (citation omitted). Given that Hidalgo-Reynoso withdrew his appeal to the Second Circuit on January 15, 2003, his conviction can be considered final as of that date. Therefore, unless one of the above exceptions applies, his petition is barred by AEDPA's statute of limitations.

  The one-year limitations period for Section 2255 petitions may be equitably tolled, however, where a petitioner shows that "extraordinary circumstances prevented him from filing his petition on time" and that he "acted with reasonable diligence throughout the period he seeks to toll." Baldayaque v. United States, 338 F.3d 145, 150 (2d Cir. 2003). To show that extraordinary circumstances were present, the petitioner

 

must demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances. Id.
  In his petition, Hidalgo-Reynoso provides no explanation for his delay in filing. Accordingly, he is directed to show cause by affirmation by August 19, 2005, why the one-year statute of limitations should not bar his petition. No answer shall be required at this time, and all further proceedings shall be stayed for 60 days from the date of this Order. If Hidalgo-Reynoso fails to comply with this Order by August 19, 2005, his petition will be dismissed as time-barred.

  SO ORDERED:

20050707

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