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United States v. Mazzeo

United States District Court, D. Nevada

March 23, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
TARA MAZZEO, Defendants.

          ORDER

         Presently before the court is petitioner Tara Mazzeo's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 55). The government filed a response (ECF No. 71), to which petitioner replied (ECF No. 85).

         On February 26, 2013, a jury verdict was entered finding petitioner guilty on counts one and three of the indictment (ECF No. 1). (ECF No. 30). On September 5, 2013, the court sentenced petitioner to five (5) years probation per count to run concurrently with special conditions. (ECF No. 42). Judgment was entered on September 9, 2013. (ECF No. 43).

         On September 9, 2013, petitioner filed a notice of appeal. (ECF No. 44). The Ninth Circuit affirmed the district court on January 23, 2015 (ECF No. 49), and the order on mandate affirming the district court's judgment was entered on April 7, 2015 (ECF No. 52).

         In the instant motion, petitioner moves to vacate arguing ineffective legal counsel. (ECF No. 55).

         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).

         Petitioner asserts that the instant motion is timely pursuant to § 2255(f)(1). (ECF No. 55 at 5). The court disagrees.

         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-

(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 applicable to cases on collateral review. . . .

28 U.S.C. § 2255(f).

         Judgment of conviction was entered on September 9, 2013 (ECF No. 43), and the order on mandate affirming the district court's judgment was entered on April 7, 2015 (ECF No. 52). Petitioner filed the ...


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