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United States v. Olivo

United States District Court, W.D. Louisiana, Shreveport Division

July 13, 2015

UNITED STATES OF AMERICA
v.
CORNELIO CESAR OLIVO Civil Action No. 12-2137

MEMORANDUM RULING

S. MAURICE HICKS, Jr., District Judge.

Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. ยง 2255 (Record Document 501) filed by Petitioner Cornelio Cesar Olivo ("Olivo"). Olivo alleges that he received ineffective assistance of counsel and, therefore, seeks a reduction of his sentence to 60 months with full credit for time served. See id. The Government answered Olivo's Section 2255 motion on October 9, 2012. See Record Document 525.

Olivo later filed a "Motion of Special DeMurrer, " arguing that the United States lacked sufficient grounds to proceed in blocking his original Section 2255 motion. Record Document 569 at 9. "In the interest of settling matters once, finally and for all, [Olivo's] relief sought [was] adjusted to a reduction to 72 months." Id. at 10. On June 28, 2013, Olivo filed "Movants Rejoiner to Lack of Replication." Record Document 584. The relief sought in this motion is unclear; however, it appears that Olivo was simply "integrat[ing] all of his comments and pending pleadings to date into this overall pending proceeding." Id. at 1.

For the reasons set forth below, all of Olivo's pending motions (Record Documents 501, 569, and 584) are DENIED.

BACKGROUND

On October 28, 2009, Olivo and twelve other co-defendants were charged with drug offenses in a nine count indictment. See Record Document 1. Specifically, Olivo was charged with conspiracy to possess with the intent to distribute 5 kilograms and more of a mixture and substance containing a detectable amount of cocaine. See id. Ricardo Rodriguez enrolled as retained counsel at Olivo's initial appearance and arraignment on January 22, 2010. See Record Documents 151 & 159. Kenneth McLean enrolled as local counsel. See id.

On March 8, 2010, Olivo entered a guilty plea to conspiracy to possess with the intent to distribute 5 kilograms and more of a mixture and substance containing a detectable amount of cocaine. See Record Documents 187 & 188. On December 9, 2010, the Government filed a Motion for Sentencing Pursuant to Section 5K1.1 of the Sentencing Guidelines. See Record Document 404. Olivo was facing a mandatory minimum term of imprisonment of 10 years to life, and he had a guideline range of 135 to 168 months. See id. On December 14, 2010, the Court granted the Section 5K1.1 motion and Olivo was sentenced to a term of imprisonment of 120 months. See Record Documents 407, 408 & 524. The Judgment was signed on December 20, 2010 and entered on December 22, 2010. See Record Document 408. No direct appeal was filed.[1] The instant Section 2255 motion was filed by Olivo on August 9, 2012. See Record Document 501.

LAW AND ANALYSIS

Title 28, United States Code, Section 2255(f) provides:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(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 ...

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