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Reza v. United States

United States District Court, D. New Mexico

December 29, 2016

EDDIE JOE REZA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER QUASHING ORDER TO SHOW CAUSE AND DIRECTING THE UNITED STATES OF AMERICA TO ANSWER

         THIS MATTER is before the Court on the Order to Show Cause entered by the Court on July 20, 2016 (CV Doc. 3; CR Doc. 70) and Movant Eddie Joe Reza's Response filed December 28, 2016 (CV Doc. 9; CR Doc. 76). The Court determines that Movant Reza has shown good cause why his Motion under 28 U.S.C. § 2255 should not be dismissed as barred by the limitations period of 28 U.S.C. § 2255(f), quashes the Order to Show Cause, and directs the United States of America to file an answer to Movant Reza's § 2255 Motion.

         Final Judgment was entered on Reza's conviction and sentence on June 1, 2011. (CR Doc. 51). Reza filed a first § 2255 motion on October 30, 2015 seeking relief under Johnson v. United States, 135 S.Ct. 2551 (2015). (CR Doc. 56). The Court determined that Reza's sentence could not have been enhanced by two challenged state court convictions because the state court charges had not even been filed at the time the Presentence Report was disclosed. Instead, he was given the two-level enhancement based on a stolen firearm. The Court concluded Reza is not eligible for relief under Johnson and denied the first § 2255 motion. (CR Doc. 58, 59). Reza filed an untimely appeal from the Court's ruling, which was dismissed by the Tenth Circuit. (CR Doc. 64).

         Reza then sought to proceed on a second § 2255 Motion, raising a different state court conviction and contending that he is eligible for relief under the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). (CR Doc. 67, CV Doc. 1). Reza filed his Application for Leave to File a Second or Successive Motion to Vacate, Set Aside or Correct Sentence 28 U.S.C. § 2255 by a Prisoner in Federal Custody in the United States Court of Appeals for the Tenth Circuit. The envelope in which the Application was mailed has a postmark of July 15, 2016, and the Application was received by the Tenth Circuit on July 20, 2016. (CR Doc. 66, 67). The Tenth Circuit granted him authorization to proceed with his second § 2255 Motion by Order dated July 29, 2016. (CR Doc. 66).

         Movant Reza is proceeding under a theory that his sentence should be vacated and he should be resentenced based on Johnson v. United States, 135 S.Ct. 2551 (2015). The 1-year limitation period applicable to his claim, then, is the period under § 2255(f)(3). The Johnson decision was handed down by the Supreme Court on June 26, 2015 and the deadline for filing a § 2255 motion based on Johnson was June 27, 2016 (June 26, 2016 was a Sunday and under Fed.R.Civ.P. 6(a)(1)(C), the time was extended to Monday, June 27).

         The Tenth Circuit's Order authorizing Movant Reza to proceed on his § 2255 Motion provides:

“The filing date for the authorized § 2255 motion is the earlier of 1) the date the motion for authorization was filed in this court, or 2) the date the motion for authorization was delivered to prison authorities for mailing, if the district court determines Movant is entitled to the benefit of the prison mailbox rule. . .”

         Because it appeared from the face of Reza's § 2255 Motion that the Motion was not filed within the one-year period provided by 28 U.S.C. § 2255(f), the Court ordered Reza to show cause why his § 2255 Motion should not be dismissed as untimely. (CV Doc. 3; CR Doc. 70). Following granting of an extension of time, Reza timely filed a Response to the Order to Show Cause on December 28, 2016. (CV Doc. 9; CR Doc. 76). Reza also filed an Amended Certificate of Service, certifying that he placed his § 2255 Motion in the prison mail system, first class postage prepaid, on June 24, 2016. (CV Doc. 8; CR Doc. 75).

         Section 2255(f) states:

“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 the exercise of due diligence.

A § 2255 motion is timely only if it is either filed within the time limitations provided under § 2255(f) or the movant presents facts supporting equitable tolling of the limitations period. To be entitled to equitable tolling, a movant must show (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Lawrence v. Florida,549 U.S. 327, 336 (2007) (citing Pac ...


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