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Diaz v. United States

June 12, 2007

LUIS DIAZ, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: McKENNA, D.J.,

MEMORANDUM AND ORDER

1.

Defendant was convicted on January 31, 1992, after a jury trial, of (a) conspiring, from in or about August of 1989 through December 4, 1990, to distribute and possess with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. § 846 (Count One); (b) distributing and possessing with intent to distribute various numbers of glassines of heroin on various dates during the conspiracy, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2 (Counts Two, Three, Four, Five, Six and Eight); (c) use of various firearms on various dates during and in relation to the conspiracy charged in Count One or the possession charged in Count Six, in violation of 18 U.S.C. §§ 924(c) and 2 (Counts Seven,*fn1 Nine and Ten); (d) possession of a firearm by a felon, on or about November 19, 1990, in violation of 18 U.S.C. § 922(g)(1) (Count Twelve); (e) maintenance of places for the distribution of heroin during the period of the indictment charged in Count One, in violation of 21 U.S.C. §§ 856(a)(1) & (2) and 18 U.S.C. § 2 (Counts Thirteen, Fourteen and Fifteen); and (f) engaging in a continuing criminal enterprise, from early 1988 through December 4, 1990, in violation of 21 U.S.C. § 848(a) (Count Seventeen).

Petitioner was sentenced on March 31, 1994, principally to 420 months imprisonment; 360 months on grouped Counts One through Six inclusive, Eight and Seventeen, 240 months on grouped Counts Thirteen through Fifteen, to be served concurrently with the 360 months, and 60 months on Count Seven, to be served consecutively to the 360 months.*fn2

Petitioner appealed and his conviction was affirmed on January 24, 1995, in an unpublished order. United States v. Collazo, 47 F.3d 1158 (2d Cir. 1995) (table). He did not seek a writ of certiorari from the Supreme Court.

In a petition dated January 7, 2006, petitioner now seeks: (i) the retroactive application of United States v. Booker, 543 U.S. 220 (2005); (ii) the vacating of his conviction under 18 U.S.C. § 924(c) because of his innocence (citing Bousley v. United States, 523 U.S. 614 (1998), and Bailey v. United States, 516 U.S. 137 (1994)); and (iii) the vacating of his conviction for conspiracy (citing Rutledge v. United States, 517 U.S. 292 (1996)).

2.

28 U.S.C. § 2255 provides that: 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 the exercise of due diligence.

Id. For the reasons set forth below, the petition is untimely as to two of its claims.

With respect to subparagraph (1) of 28 U.S.C. § 2255, petitioner's judgment became final when his time to seek a writ of certiorari from the Supreme Court expired, Clay v. United States, 537 U.S. 522, 532 (2003), i.e., on April 24, ...


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