Perry Barnes v. City of Omaha

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3393
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Mario B. Valdez-Aldaba, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 5, 2009
Filed: July 23, 2009
___________
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Mario Valdez-Aldaba appeals the district court’s1 dismissal of his post-
judgment motion seeking to modify his sentence to grant him credit for time served
on a state sentence. The district court dismissed the motion as untimely under Federal
Rule of Criminal Procedure 35(a). Valdez-Aldaba’s counsel has moved to withdraw.
Because Valdez-Aldaba’s post-judgment motion was filed more than eighteen
months after his sentencing, we conclude that the district court correctly denied it as
1The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

-- 1 of 2 --

untimely, whether it is characterized as a motion to correct a sentence under Rule
35(a), or as a motion for relief from an illegal sentence under section 2255. See 28
U.S.C. § 2255(f)(1) (indicating motion for relief from sentence under § 2255 must be
filed within 1 year from date on which judgment of conviction became final); Fed. R.
Crim. P. 35(a) (providing for correction of sentence “[w]ithin 7 days after
sentencing”).
Accordingly, we affirm and grant counsel’s motion to withdraw.
______________________________
-2- 2

-- 2 of 2 --