Appeal from the United States District Court for the Western District of Texas.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX.
IGNACIO OLVERA, Defendant - Appellant, Pro se, Anthony, TX.
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit
Ignacio Olvera appeals, pro se and in forma pauperis, the dismissal of his 28 U.S.C. § 2255 motion as time-barred. He claims that an amended judgment, entered after his sentence was modified pursuant to Federal Rule of Criminal Procedure 35(b), recommences the one-year limitations period under § 2255(f)(1). In addition, he maintains that the motion was timely because Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), applies retroactively to cases on collateral review. The district court rejected those arguments and issued a certificate of appealability on both issues. We affirm.
In October 2010, Olvera was sentenced to 168 months' imprisonment after pleading guilty of conspiracy to possess five kilograms or more of cocaine with intent to distribute in violation of 21 U.S.C. § § 841(a) and 846. This court affirmed in August 2011, and Olvera did not petition for a writ of certiorari. In accordance with the government's motion to reduce the sentence under Rule 35(b), the district court entered an amended judgment with a 120-month sentence in December 2012. Olvera filed the § 2255 motion in January 2013.
The district court dismissed the motion as time-barred after finding that (1) it was filed more than one year after he had failed to petition for certiorari in his initial case; (2) the government had not prevented him from timely filing the motion; (3) Alleyne is not retroactively applicable to cases on collateral review and therefore does not alter the limitations period; and (4) Olvera was not entitled to equitable tolling. On appeal Olvera maintains that the court erred by not calculating the limitations period from the time of the amended judgment and that Alleyne is retroactive.
" We review the district court's factual findings relating to a ...