The opinion of the court was delivered by: Deborah K. Chasanow United States District Judge
Presently pending and ready for resolution is a motion filed by Petitioner Luis Galvez to vacate, set aside, or correct his sentence. (ECF No. 215). The relevant issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion will be denied.
On July 7, 2008, Petitioner was convicted, upon his guilty plea, of conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine, and sentenced to a term of imprisonment of seventy months. He did not appeal.
On January 19, 2010, the court received for filing the pending motion pursuant to 28 U.S.C. § 2255 in which Petitioner contends that he is being deprived of his right to equal protection because, due to his status as non-citizen of the United States, he has been unable to participate in Bureau of Prison programs through which he might otherwise have obtained a "year reduction of sentence through a drug program" or placement in a "halfway house . . . pursuant to 18 USCA [§] 3583(d)." (ECF No. 215, at 5, 6, 8). The government was directed to respond, and did so on January 19, 2010. (ECF No. 217).
To be eligible for relief under 28 U.S.C. § 2255, a petitioner must show, by a preponderance of the evidence, that his "sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law." 28 U.S.C. § 2255(a). A pro se movant, such as Petitioner, is entitled to have his arguments reviewed with appropriate consideration. See Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978). But if the § 2255 motion, along with the files and records of the case, conclusively shows that he is not entitled to relief, a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. 28 U.S.C. § 2255(b).
The government argues that the Petitioner's motion should be summarily dismissed because (1) it was untimely filed, (2) § 2255 does not provide a basis for relief, and (3) the underlying claim is nevertheless without merit. All three arguments are persuasive.
Pursuant to 28 U.S.C. § 2255(f), a federal prisoner must file a motion to vacate, set aside, or correct his sentence within one year of the latest of the following dates:
(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 ...