United States District Court, D. New Mexico
MEMORANDUM OPINON AND ORDER OF DISMISSAL
MATTER is before the Court under Rule 4 of the Rules
Governing Section 2255 Proceedings on the Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (CV Doc. 1, 9; CR Doc. 42,
49). The Court will dismiss Alonso's Motion on the
grounds that (1) the Motion is untimely and (2) in light of
the U.S. Supreme Court's decision in Beckles v.
United States, 580 U.S.__, No. 15-8544, slip op (March
6, 2017), Alonso is clearly ineligible for relief.
was indicted on counts of burglary, possession of a
controlled substance, and felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
(CR Doc. 18). He pled guilty to the indictment without a
written plea agreement. (CR Doc. 28). Alonso's sentence
was enhanced under the Sentencing Guidelines § 2K2.1
based on a prior felony crime of violence as defined in USSG
§ 4B1.2. PSR at ¶ 13. Alonso sought a downward
departure under USSG § 5G1.3from his sentencing
guidelines advisory range of 57 to 71 months based on a state
court sentence. (CR Doc. 32). He was sentenced on April 15,
2014, to a term of incarceration of 49 months and 26 days, to
be served concurrent with the state sentence. (CR Doc. 41).
Alonso filed his § 2255 motion on July 5, 2016 (CV Doc.
1; CR Doc. 42) and an amended motion on September 12, 2016
(CV Doc. 9; CR Doc. 49).
seeks collateral review of his sentence under 28 U.S.C.
§ 2255. Section 2255 provides:
“A prisoner in custody under a sentence of a court
established by Act of Congress claiming the right to be
released upon the ground That the sentence was imposed in
violation of the Constitution or Laws of the United States,
or that the court was without jurisdiction To impose such
sentence, or that the sentence was in excess of the Maximum
authorized by law, or is otherwise subject to collateral
Attack, may move the court which imposed the sentence to
vacate, Set aside or correct the sentence.”
U.S.C. § 2255(a). Section 2255(f) sets out the statute
of limitations governing motions for collateral review of
convictions and sentences:
1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(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.
did not appeal from the judgment of conviction. Absent a
direct appeal or other proceeding attacking his conviction or
sentence, Alonso's judgment of conviction became final on
April 29, 2014, and his July 1, 2016 filing is untimely for
purposes of 28 U.S.C. § 2255(f)(1). Clay v. United
States, 537 U.S. 522, 524 (2003).
Alonso is proceeding under a theory that his sentence should
be vacated based on Johnson v. United States, 135
S.Ct. 2551 (2015), and that the 1-year limitation period
applicable to his claim 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). Alonso's Motion Under 28 U.S.C. §§
2255 was not filed until July 1, 2016, more than one year
after the Supreme Court's decision in Johnson
and contains no certification that would give him the benefit
of the prisoner mailbox rule. See Price v. Philpot,
420 F.3d 1158, 1165-67 (10th Cir.2005); United States v.
Ceballos-Martinez, 387 F.3d 1140, 1143-46 (10th
Motion is also untimely under either § 2255(f)(1) or
§ 2255(f)(3). A pleading may be subject to dismissal
when an affirmative defense, such as statute of limitations,
appears on the face of the complaint or petition. Jones
v. Bock, 549 U.S. 199, 214-15 (2007); Vasquez Arroyo
v. Starks, 589 F.3d 1091, 1096 (10th Cir.
2009). Because the untimeliness of Alonso's Motion
appears on the face of the filing, the Court may dismiss his
§ 2255 Motion on the grounds of untimeliness.
even if Alonso's Motion was timely, in light of the U.S.
Supreme Court's decision in Beckles v. United
States, Alonso is clearly ineligible for relief. In
Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminal Act (“ACCA”)
is impermissibly vague and imposing an increased sentence
under the residual clause of 18 ...