The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Manuel Puentes-Garcia's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). On October 9, 2008, the petitioner pled guilty to one count of illegal re-entry into the United States without permission after having committed a felony and being removed from the United States, all in violation of 8 U.S.C. § 1326(a) and (b)(2). On February 6, 2009, the Court sentenced the petitioner to serve 86 months in prison with 1 month credit for time served. The petitioner did not appeal his sentence.
In his § 2255 motion, first filed on July 23, 2012, as a motion for downward departure in Puentes-Garcia's criminal case, and filed as this § 2255 case on November 16, 2012, the petitioner raises the following claims:
1. Ineffective assistance of counsel for failing to seek a downward departure due to the sentencing disparity with defendants in the fast-track program, see, e.g., United States v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010);
2. Ineffective assistance of counsel for failing to advise him deportation would result from his guilty plea, see Padilla v. Kentucky, 559 U.S. 356 (2010); and
3. Ineffective assistance of counsel for failing to communicate a plea offer from the Government, see Missouri v. Frye, 132 S. Ct. 1399 (2012).
The Government has responded to the petitioner's § 2255 motion (Doc. 5) arguing that the petition is untimely and otherwise without merit. Puentes-Garcia did not reply to the Government's response.
II. Timeliness of Petition
A petitioner seeking relief under § 2255 must file his motion within the one-year statute of limitations set forth in § 2255(f). Prisoners used to be able to file motions under § 2255 at any time during their sentences. However, on April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, tit. I, § 106 (codified at 28 U.S.C. §§ 2244(a) & (b), 2255(f)), which added a one-year limitations period for a motion attacking a sentence. The one-year limitations period runs from the latest of four events:
(1) the date on which the judgment of conviction becomes 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 ...