US v. Jose Nunez-Garcia, No. 20-6710 (4th Cir. 2022)
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Defendant, a naturalized United States citizen, received advice from counsel in 2010 that because of his newly obtained citizenship, his guilty plea to a narcotics offense would not subject him to deportation. However, Defendant's citizenship was revoked in 2016. In 2018, Defendant received a Notice to Appear informing him that he would be removed from the country because his 2010 conviction was an aggravated felony. Upon receiving that notice, he filed a collateral attack upon his 2010 guilty plea under 28 U.S.C. Sec. 2255. The district court found that Defendant’s 2018 petition was untimely under Sec. 2255(f)(4).
The court reasoned that Sec. 2255 petitions must typically be filed within one year of the date “on which the judgment of conviction becomes final.” But petitions based on facts that arise after a conviction becomes final must instead be filed within one year of “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Defendant testified that his Alexandria-based attorney told him in 2016 that his conviction was an aggravated felony. The court found that notice alone triggered Sec. 2255(f)(4)’s limitations period. Second, even setting aside that admission, the nature of Defendant’s sentencing proceedings on July 8, 2016, put him on inquiry notice that his 2010 conviction was an aggravated felony. Therefore, the court held that the district court correctly dismissed the petition as untimely.
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