United States District Court, N.D. Indiana, South Bend Division
OPINION and ORDER
ROBERT L. MILLER, Jr., District Judge.
Nolberto Robledo pleaded guilty to one count of possession with intent to distribute cocaine and was sentenced on October 31, 2012 to 70 months' imprisonment, to be followed by a three-year term of supervised release, and was ordered to pay a special assessment of $100.00. Judgment was entered that same day. No timely appeal was filed. In August 2013, Mr. Robledo filed a notice of appeal; the court of appeals dismissed his appeal as untimely the following January. Mr. Robledo is now before the court asking that his sentence be vacated pursuant to 28 U.S.C. § 2255; his petition was filed on August 29, 2014.
The Antiterrorism and Effective Death Penalty Act of 1996 requires that a § 2255 motion be filed within one year of:
(1) the date on which the judgment of conviction bec[ame] 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(f)(1)-(4). Mr. Robledo hasn't argued that any of those provisions apply.
A petitioner's conviction becomes final when he was sentenced, and the sentence becomes final when the deadline for filing a notice of appeal expires. Clarke v. United States, 703 F.3d 1098, 1100 (7th Cir. 2013); see also United States v. Shields, No. 10-cr-30179, 2014 WL 4099369, at (S.D. Ill. Aug. 20, 2014) ("For § 2255 purposes, a judgment becomes final after the defendant has been sentenced and the time for filing a direct appeal has passed."). The relevant date for the starting of the one-year clock in this case is November 14, 2012, the date when the deadline for filing an appeal expired and the judgment became final. Mr. Robledo's filing of his petition on August 29, 2014 is outside the limitations period, making the petition untimely.
Had Mr. Robledo's petition been timely, he still couldn't prevail. Mr. Robledo's plea agreement reveals that he waived his right to appeal his conviction and sentence and to contest his conviction and sentence in a § 2255 proceeding. That plea agreement, signed by Mr. Robledo, his attorney William Stevens, and Assistant United States Attorney William Grimmer, contains the following language in paragraph 9(l):
(l) I understand that the law gives a convicted person the right to appeal the conviction and the sentence imposed, I expressly waive my right to appeal or to contest my conviction and my sentence or the manner in which my conviction and my sentence was determined or imposed, to any court on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation, including any appeal under Title 18, United States Code, Section 3742 or any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255.
Petn. To Enter A Guilty Plea, at 5. Mr. Robledo challenges his sentence based on his claims that his counsel provided ineffective assistance by not advising him of his constitutional rights, not assuring that a factual basis for his guilty plea existed, not providing him with an opportunity to allocute, and not filing a timely notice of appeal.
A plea agreement containing a waiver of the right to appeal and file a petition under § 2255 can be collaterally attacked in a limited number of circumstances, including challenges based upon contractual grounds such as mutual mistake or breach, United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005), when a defendant claims the waiver was involuntary or counsel was ineffective in negotiating the agreement, Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000), or when the sentence exceeds the statutory maximum sentence for the offense of conviction. United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005).
Mr. Robledo said at his change of plea hearing that he told his attorney everything counsel needed to know to represent him in this case, that his plea was knowing and voluntary, that no one had used any force or made any threats to get him to plead guilty, that the plea agreement had been translated into Spanish for him before he signed it, that he had discussed the plea agreement with his counsel before the plea hearing, that he and his attorney had reviewed the sentencing guidelines before the plea hearing, that he was guilty of the charges contained in the superceding indictment, and that he was satisfied with the ...