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United States v. Tedesco

United States District Court, D. Nevada

July 30, 2014

UNITED STATES OF AMERICA, Plaintiff(s),
v.
DIANE TEDESCO, Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is petitioner Diane Tedesco's motion to vacate pursuant to 28 U.S.C. § 2255. (Doc. # 14). The government filed a response in opposition. (Doc. # 17).

I. Background

On October 29, 2010, pursuant to a plea agreement (doc. # 5), petitioner waived indictment (doc. # 2) and pled guilty to a two-count information charging her with conspiracy to distribute and conspiracy to acquire oxycodone by fraud (docs. # 3, 4). The plea agreement included, inter alia, a waiver of the right to appeal her conviction and sentence, except an upward departure, and all non-waivable claims of ineffective assistance of counsel. (Doc. # 5 at 4).

On January 27, 2011, this court sentenced petitioner to 110 months on count one and forty-eight months on count two to run concurrently, with five years supervised release on count one and one year on count two, also to run concurrently. (Doc. # 9). Petitioner was advised of her right to file an appeal. (Doc. # 9). The court entered judgment on February 9, 2011 (doc. # 10), and judgment became final on February 23, 2011, as petitioner did not file a direct appeal. See Fed. R. App. P. 4(b)(1)(A).

On June 19, 2014, petitioner filed the instant motion to vacate based on: (1) erroneous sentencing; (2) ineffective assistance of counsel; (3) subsequent change in sentencing guidelines; and (4) "miscarriage of justice." (Doc. # 14).

II. Legal Standard

Federal prisoners "may move... to vacate, set aside or correct [their] sentence" if the court imposed the sentence "in violation of the Constitution or laws of the United States...." 28 U.S.C. § 2255(a). Section 2255 relief should be granted only where "a fundamental defect" caused "a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 (1962).

Limitations on § 2255 motions are based on the fact that the movant "already has had a fair opportunity to present his federal claims to a federal forum, " whether or not he took advantage of the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 "is not designed to provide criminal defendants multiple opportunities to challenge their sentence." United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).

III. Discussion

Motions to vacate a sentence pursuant to § 2255 are subject to a one-year statute of limitations. 28 U.S.C. § 2255(f). The one-year period runs from the latest of-c

(1) the date on which the judgment of conviction becomes final;...
....
(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 ...

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