1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Case No.: 18-CR-2242-DMS

12 Plaintiff, ORDER DENYING DEFENDANT’S 13 v. MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 14 WESLY ANTHONY MORALES,

15 Defendant. 16 17 Pending before the Court is Defendant Wesly Anthony Morales’ motion to vacate, 18 set aside, or correct his sentence pursuant to

. The United States filed a 19 response in opposition. Defendant did not file a reply. For the reasons set out below, the 20 Court denies Defendant’s motion. 21 On May 3, 2018, Defendant was indicted on charges of conspiracy to distribute 22 cocaine and possession of cocaine with intent to distribute, while on board a vessel subject 23 to the jurisdiction of the United States, in violation of

and 70506(b), 24 and aiding and abetting, in violation of

. (ECF No. 24.) On September 24, 25 2019, the United States filed a superseding information charging Defendant with 26 conspiracy to distribute cocaine intended for unlawful importation in violation of 21

, 960, and 963. (ECF No. 86.) On the same date, Defendant pled guilty to 28 the superseding information pursuant to a written plea agreement. (ECF Nos. 88, 90.) 1 On December 20, 2019, the Court sentenced Defendant to 96 months in custody, followed 2 by three years of supervised release. (ECF No. 133.) On March 1, 2021, Defendant, 3 proceeding pro se, filed the present motion to vacate. (ECF No. 145.) 4 Under

, the Court may “vacate, set aside, or correct the sentence” 5 of a federal prisoner on “the ground that the sentence was imposed in violation of the 6 Constitution or laws of the United States, or that the court was without jurisdiction to 7 impose such sentence, or that the sentence was in excess of the maximum authorized by 8 law, or is otherwise subject to collateral attack.”

(a). To warrant relief 9 under § 2255, a prisoner must allege a constitutional or jurisdictional error, or a 10 “fundamental defect which inherently results in a complete miscarriage of justice [or] an 11 omission inconsistent with the rudimentary demands of fair procedure.” United States v. 12 Timmreck,

(1979) (quoting Hill v. United States,

, 428 13 (1962)). 14 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides a one-year 15 statute of limitations for a federal prisoner to file a motion to vacate, set aside, or correct a 16 sentence pursuant to § 2255. See

(f). For purposes of a § 2255 motion, 17 a judgment becomes final and the limitations period begins to run “upon the expiration of 18 the time during which [he or] she could have sought review by direct appeal.” United 19 States v. Schwartz,

(9th Cir. 2001). Here, because Defendant waived 20 his right to appeal (see ECF No. 90), the judgment became final on December 20, 2019. 21 Thus, under the AEDPA, Defendant had until December 20, 2020 to file his motion. 22 Defendant, however, filed the present motion on March 1, 2021. (ECF No. 145.) 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 || There is nothing before the Court to support a finding that the limitations period was tolled 2 || during this time. Defendant’s § 2255 motion is therefore untimely and must be denied.! 3 IT IS SO ORDERED. 4 ||Dated: June 28, 2021 J 5 a Yn: Hon. Dana M. Sabraw, Chief Judge 6 United States District Court 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 || ——_ 2g Even if Defendant’s motion were timely, it must be denied because Defendant waived his right to appeal or to collaterally attack his conviction. (See ECF No. 90.)