The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
The petitioner, Martha Arias, moves pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence.
On March 18, 2003, the petitioner pleaded guilty to two counts of an information: (1) one count of conspiracy, in violation of 21 U.S.C. § 963, to import into the United States more than one kilogram of heroin, in violation of 21 U.S.C. §§ 812, 952, 960 (a)(1), and 960 (b)(1)(A), and (2) one count of conspiracy, in violation of 21 U.S.C. § 846, to distribute and possess with intent to distribute more than one kilogram of heroin, in violation of 21 U.S.C. §§ 812, 841 (a)(1), and 841 (b)(1)(A). On September 5, 2003, Chief Judge Mukasey sentenced the petitioner principally to a term of imprisonment of 108 months, to run concurrently on both counts, and a term of supervised release of three years. (Gov't Ex. F 12.) On October 14, 2005, the defendant's judgment of conviction was entered, and the petitioner did not file a notice of appeal.
The current petition is dated April 29, 2007, and was received by the Pro Se Office of this Court on May 2, 2007. The petitioner seeks to vacate, set aside, or correct her sentence on the grounds that she received ineffective assistance of counsel. She alleges that her counsel informed her that she would be sentenced to no more than five years of imprisonment, and that the conspiracy to import heroin charge would be dismissed. The petitioner further requests a downward departure of her sentence so that she can support her daughter, who has allegedly suffered emotional distress because of the petitioner's term of incarceration. (Pet. 5)
The petitioner's motion must be dismissed because it is time-barred, and in any event is without merit.
The petitioner's motion to vacate, set aside, or correct her sentence of 108 months on the basis of ineffective assistance of counsel must be dismissed because the petition is time-barred. As provided by 28 U.S.C. § 2255(f), (f) 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.
For the purposes of § 2255(f)(1), a judgment of conviction becomes final when the time for filing a direct appeal has lapsed. Moshier v. United States, 402 F.3d 116, 118-19 (2d Cir. 2005). Pursuant to the Federal Rules of Appellate Procedure 4(b) and 26(a), a defendant has ten days after a judgment of conviction has been entered, excluding intermediate Saturdays, Sundays, and legal holidays, to file a direct appeal. Moshier, 402 F.3d at 119. Thus, if the defendant does not file a direct appeal within ten days of judgment being entered, the judgment becomes final, and the defendant must file a § 2255 motion within one year of that date, unless the motion is filed pursuant to one of the exceptions listed in § 2255(f)(2)-(4).
In the present case, the petitioner's judgment of conviction was entered on October 14, 2005. Following her judgment of conviction, the petitioner filed no direct appeal within ten days, and, because none of the exceptions under § 2255(f)(2)-(4) apply, had one year, or until October 28, 2006, to file a motion pursuant to § 2255. However, the petitioner did not file the present motion until April 29, 2007, at the earliest, well ...