United States District Court, D. New Mexico
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 Pac ...