United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER TO SHOW CAUSE
the Court is Defendant's Motion/Letter to Rescind.
(Doc.116). Defendant is incarcerated and proceeding
pro se. He asks the Court to modify his sentence to
accurately reflect the terms of his plea agreement. The Court
construes the filing as a motion to vacate or correct
sentence under 28 U.S.C. § 2255. After reviewing the
motion sua sponte under Habeas Corpus Rule 4(b), the
Court will order Defendant to show cause why the motion
should not be dismissed as untimely.
6, 2013, Defendant pled guilty to interfering with interstate
commerce by robbery in violation 18 U.S.C. § 1951(a).
(Doc. 96). Under the plea agreement, the parties stipulated
that Defendant's sentence would be 120 months.
Id. at ¶ 9. The agreement further states:
“the United States does not oppose the service of the
sentence in the instant case concurrently with any remaining
sentence in CR-200603134 as well as the discharged sentence
in CR 11-1176.” Id. at ¶ 9(b). On August 9,
2013, the Court entered judgment on Defendant's
conviction and sentence (the “Judgment”). (Doc.
102). The Judgment provides that the 120 month sentence will
run concurrent with Defendant's state sentence in case
no. D-202-CR-20060313. (Doc. 102). No appeal was filed.
Defendant's conviction therefore became final on August
26, 2013, the first business day following the expiration of
the 14-day appeal period. See United States v.
Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006); U.S.
v. Garcia-Roman, 466 Fed. App'x 750, 751 (10th Cir.
17, 2016, Defendant filed his first motion to vacate or
correct sentence pursuant 28 U.S.C. § 2255. (Doc. 105).
Defendant sought relief under Johnson v. United
States, 135 S.Ct. 2551 (2015). He asserted section 4B1.2
of the United States Sentencing Guidelines - which provided
the basis for his sentence - was unconstitutionally vague.
The United States filed a response on February 10, 2016.
weeks later, and before any recommended ruling was filed, the
Supreme Court issued its decision in Beckles v. United
States, 137 S.Ct. 886 (2017). Beckles held that
the guidelines are not subject to void-for-vagueness
challenges. The parties agreed Beckles was
dispositive of the issues raised in § 2255 motion. (Doc.
112). Defendant filed a motion to voluntarily withdraw the
§ 2255 claim without prejudice pursuant to Fed.R.Civ.P.
41(a)(2), which the United States opposed. (Doc. 113).
order entered April 26, 2017, the Court dismissed the §
2255 motion without prejudice. (Doc. 114). The Court noted
that it had not reached the merits of the § 2255 motion,
and the situation was “not one where Petitioner
… merely read the ‘clear writing on the wall in
the form of the magistrate [judge's] report' and
conceded defeat based on the contents therein.”
Id. at p. 3 (quoting Hurd v. Mondragon, 851
F.2d 324, 328-29 (10th Cir. 1988)).
filed the instant motion on May 15, 2017. (Doc. 116). He
argues his 120-month sentence is inconsistent with the plea
agreement. Specifically, Defendant points out that the plea
agreement contemplates that his robbery sentence would run
concurrent with his discharged federal sentence in
11-CR-1176, but the Judgment only references his state
sentence in case no. D-202-CR-200603134. The motion was
initially docketed as a habeas petition under 28 U.S.C.
§ 2241. However, Defendant is not challenging how his
sentence is being executed, but rather the validity of the
sentence itself, as it allegedly violates the plea agreement.
The Court will therefore construe the motion as being brought
pursuant to 28 U.S.C. § 2255. See U.S. v.
McAllister, 608 Fed. App'x 631 (10th Cir. 2015)
(using § 2255 to analyze the defendant's claim that
the government breached the plea agreement during
sentencing); U.S. v. Bell, 437 Fed. App'x 658
(10th Cir. 2011) (same); Nichols v. United States,
474 Fed. App'x. 854, 855-56 (3rd Cir. 2012) (claims
relating to breach of plea agreements that would require
invalidation of the underlying conviction or sentence must
generally be raised in a § 2255 motion).
initial matter, the Court must decide whether the instant
§ 2255 motion is second or successive. If it is, the
“district court does not have jurisdiction to address
the merits … until [the Tenth Circuit] has granted the
required authorization.” In re Cline, 531 F.3d
1249, 1251 (10th Cir. 2008). See also § 2255(h)
(requiring a second or successive motion to be certified by
the appropriate court of appeals).
§ 2255 petition “that does not result in an
adjudication of the merits of the habeas claims … will
not count as a first habeas petition for purposes of
determining whether later habeas petitions are second or
successive.” Douglas v. Workman, 560 F.3d
1156, 1188 n. 18 (10th Cir. 2009). See also Haro-Arteaga
v. United States, 199 F.3d 1195, 1196 (10th Cir.1999)
(finding that a § 2255 motion filed after two earlier
motions had been voluntarily dismissed would not be barred
because “to be considered successive, the previous
motion must have been denied on the merits. The district
court must have engaged in substantive review.”)
(quotations omitted). As explained in the dismissal order,
the first § 2255 motion was not denied on the merits,
nor did Defendant concede defeat in the face of an
unfavorable recommended ruling. The instant § 2255
motion will therefore not be considered successive.
to the merits, it appears Defendant's claims are time
barred. Motions under § 2255 must generally be filed
within one year after the conviction becomes final. See
U.S. v. McGaughy, 670 F.3d 1149, 1152 n. 1 (10th Cir.
2012) (citing 28 U.S.C. § 2255(f)(1)). Defendant's
first § 2255 motion fell within an exception allowing
prisoners to move to amend their sentence based on a
“right [that] has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review.” 28 U.S.C. § 2255(f)(3).
However, the instant motion is not based on a newly
recognized right and was filed nearly three years after the
conviction became final. The motion must therefore be
dismissed unless Defendant files a response that demonstrates
grounds for tolling. See United States v. Cordova,
1999 WL 1136759, *1 (10th Cir. Dec. 13, 1999); Hare v.
Ray, 2000 WL 1335428, *1 (10th Cir. Sept. 15, 2000)
(noting that the timeliness of a § 2254 petition may be
raised sua sponte and allowing response); Hines
v. United States, 971 F.2d 506, 507-09 (10th Cir. 1992)
(same for procedural default in § 2255 proceeding).
Defendant fails to timely respond or demonstrate adequate
grounds for tolling, the Court may dismiss the instant §
2255 motion without further notice. Any subsequent §
2255 motion will be subject to the restriction on
“second or successive” motions.
Haro-Arteaga, 199 F.3d at 1196. Alternatively, if
Defendant disagrees that his filing should be construed as a
motion to modify his sentence under § 2255, he may
withdraw the filing or amend it to clarify his claims.
See Castro v. United States, 540 U.S. 375, 383
THEREFORE ORDERED that, within thirty (30) days from entry of
this order, Defendant must file a response showing cause, if
any, why his § 2255 motion should not be ...