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Jasper Vargas v. United States of America

July 26, 2011

JASPER VARGAS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT,



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED

Tuesday, 26 July, 2011 04:21:11 PM Clerk, U.S. District Court, ILCD

OPINION

On October 8, 2010, Petitioner, Jasper Vargas filed a pro se Motion to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (#1). In his motion Petitioner alleges that: (1) his constitutional right to effective counsel was violated because his trial and appellate counsel were both ineffective, and (2) as a result he was denied a fair trial. The Respondent contends that the Petitioner's motion should be dismissed as time barred because it was filed more than one year after his conviction and sentence became final (#4).

This court has carefully reviewed the record in this case and the arguments of the parties. Following this careful and thorough review, this court agrees with the Respondent that the Petitioner's § 2255 motion is time barred. Therefore, Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (#1) is dismissed.

FACTS

On November 20, 2004, an Illinois state trooper pulled Petitioner's tractor-trailer over for speeding northbound on Interstate 57 in Iroquois County in the Central District of Illinois. The Petitioner appeared nervous and his hands were shaking. During a search of the tractor-trailer, agents found a hidden compartment in the refrigeration unit of the trailer and discovered 157 bundles containing 282 kilograms of cocaine with a wholesale value worth over five million dollars.

On February 3, 2005, in Case No. 05-CR-2007, a grand jury in the Central District of Illinois charged the Petitioner with one count of possession of more than five kilograms of cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii) . On January 18, 2007, following a jury trial, the court declared a mistrial because of a hung jury. On January 31, 2007, following a retrial, a jury found the Petitioner guilty. On May 2, 2007, the district court sentenced the Petitioner to a mandatory term of life imprisonment and imposed a $100 special assessment. On May 3, 2007, the Petitioner filed a timely notice of appeal.

On appeal, the Petitioner argued that the trial court erred in permitting the United States to prove the Petitioner's knowledge of the cocaine by introducing evidence that the Petitioner previously had been involved in transporting drugs in refrigerated trailers. On December 31, 2008, the Seventh Circuit held that the court properly admitted this evidence under Fed. R. Evid. 404(b) and affirmed Petitioner's conviction. United States v. Vargas, 552 F.3d 550 (7th Cir. 2008). The Petitioner had until March 31, 2009, to petition the United States Supreme Court for a writ of certiorari. Supreme Court records show that the Petitioner filed his petition on July 30, 2009. On October 5, 2009, the Supreme Court denied the Petitioner's petition for a writ of certiorari. Vargas v. United States, 130 S. Ct. 308 (U.S. Oct. 5, 2009).

On October 8, 2010, the Petitioner filed a pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. In his motion, the Petitioner argues that his trial and appellate counsel were ineffective for: (1) failing to object to a drug agent's expert testimony that drug traffickers do not typically use unwitting individuals to transport over $5 million in narcotics; and (2) failing to object to the admission of evidence of the prior sentence reductions of cooperating government witnesses. Petitioner argued that the cumulative effect resulted in prejudice to him and denied him his right to a fair trial. The government filed a Response (#4) and argued that Petitioner's motion is untimely. Petitioner filed a Reply (#5).

ANALYSIS

A § 2255 motion to vacate, set aside or correct a sentence may be brought by a "prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). However, a "1-year period of limitation shall apply to a motion under this section." 28 U.S.C. § 2255(f).

The limitation period shall run from the latest of--

(1) the date on which the judgment of the conviction ...


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