United States District Court, D. New Mexico
December 29, 2016
EDDIE JOE REZA, Movant,
UNITED STATES OF AMERICA, Respondent.
ORDER QUASHING ORDER TO SHOW CAUSE AND DIRECTING THE
UNITED STATES OF AMERICA TO ANSWER
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.
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).
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.
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).
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. . .”
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).
“A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
(1) the date on which the judgment of conviction becomes
(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
(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 Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)); Yang. v.
Archuleta, 525 F.3d 925, 928 (10th Cir.
prisoner may also demonstrate timeliness by certifying
compliance with the prison mailbox rule within the time
period set out under § 2255(f). For purposes of §
2255 proceedings, the prison mailbox rule is set out in rule
3(d) of the Rules Governing Section 2255 Proceedings for the
United States District Courts. Rule 3(d) states:
A paper filed by an inmate confined in an institution is
timely if deposited in the institution's internal mailing
system on or before the last day for filing. If an
institution has a system designed for legal mail, the inmate
must use that system to receive the benefit of this rule.
Timely filing may be shown by a declaration in compliance
with 28 U.S.C. § 1746 or by a notarized statement,
either of which must set forth the date of deposit and state
that first-class postage has been prepaid.
Rule 3(d) of the Rules Governing Section 2255 Proceedings for
the United States District Courts (emphasis added). Rule 3(d)
provides that, for prisoners, timely filing through use of a
prison mail system may be shown by a declaration in
compliance with 28 U.S.C. § 1746 or by a notarized
statement, either of which must set forth the date of deposit
and state that first-class postage has been prepaid. Even if
the prisoner actually uses the prison's mail system and
pays the postage, that use of the system will not trigger the
mailbox rule if the mandatory declaration requirements of
rule 3(d) are not satisfied. Instead, if the declaration does
not meet the requirements of the rule, the date of receipt by
the court is the controlling filing date. See, e.g.,
Price v. Philpot, 420 F.3d 1158, 1165-67 (10th
Cir.2005); United States v. Ceballos-Martinez, 387
F.3d 1140, 1143-46 (10th Cir.2004); Smith, 182 F.3d
at 734 n. 1.
Response, Reza presents facts, by a sworn affidavit, that he
had been diligently pursuing filing of his § 2255 Motion
prior to the June 26, 2016 deadline for filing under the
Johnson case. However, he was undergoing
chemotherapy at the time and was housed at a medical
facility. The medical facility functions very differently
from a normal Bureau of Prisons facility. Reza testifies that
he gave his § 2255 Motion to a nurse in a sealed
envelope on June 24, 2016 and advised the nurse that he was
under a deadline to file. For reasons Reza does not know, the
§ 2255 Motion was not postmarked until July 15, 2016.
(CV Doc. 9-1; CR Doc. 76-1). Reza has also filed an Amended
Certificate of Service establishing his attempt to comply
with the prison mailbox rule requirements of rule 3(d). (CV
Doc. 8; CR Doc. 75).
is a question as to whether the medical facility where Reza
was housed has a prison mail system as contemplated by rule
3(d). Assuming that it does, then Reza's Amended
Certificate of Service establishes the certification
requirements of the rule. However, even if the medical
facility does not have a prison mail system, Reza's
affidavit sufficiently demonstrates good cause for equitable
tolling of the § 2255 limitation period. The Court
determines that Reza's § 2255 Motion is not clearly
subject to dismissal as untimely and will quash the Order to
ORDERED that the Court's September 28, 2016 Order to Show
Cause (CV Doc. 3; CR Doc. 70) is QUASHED; and
FURTHER ORDERED that the United States of America ANSWER
Movant's § 2255 Motion within twenty-three days of
entry of this Order. The Clerk is DIRECTED to forward to the
United States of America a copy of Defendant's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence (CV Doc. 1; CR Doc. 67) and supporting papers and
exhibits, if any, together with a copy of this Order.