United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DISMISSING
DEFENDANT'S HABEAS PETITION
Harold Pete asks the Court to vacate or reduce his federal
sentence. See MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE (Doc. No. 34)
(Motion). Defendant asserts his counsel rendered
ineffective assistance and that his guilty plea was not
entered voluntarily or knowingly. After reviewing the matter
sua sponte under Habeas Corpus Rules 4(b) and 11(a),
the Court will dismiss the Motion.
pled guilty to using and discharging a firearm during a crime
of violence in violation of 18 U.S.C. §
924(c)(1)(A)(iii). (Doc. No. 17). He received a sentence of
ten years imprisonment. (Doc. No. 28). The Court entered
JUDGMENT on Defendant's conviction and sentence on
September 18, 2013. (Doc. No. 29). No appeal was filed.
Defendant's conviction therefore became final on October
3, 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.
2012). Approximately three and a half years later, on
February 13, 2017, Defendant filed the Motion. (Doc. No. 34).
MEMORANDUM OPINION AND ORDER TO SHOW CAUSE (Doc. No. 38)
entered April 27, 2017, the Court required Defendant to show
cause why the Motion should not be dismissed because it was
filed after the one-year limitation period in §
2255(f)(1). See also U.S. v. McGaughy, 670 F.3d
1149, 1152 n. 1 (10th Cir. 2012) (Motions under § 2255
must generally be filed within one year after the
defendant's conviction becomes final).
ANSWER TO SHOW CAUSE (Doc. No. 39) (Response) was filed May
25, 2017. Defendant offered the following explanation in an
attempt to toll the one-year period:
Attorney stated on three occasions he filed 28 U.S.C. §
2255 for the defendant. The defendant sent correspondence
after correspondence to the defendant's public defender,
which went unanswered. An internal audit of the
defendant's docket sheet showed no 2255 motion filed. The
defendant again sent a correspondence to the defendant's
defense attorney asking why the 2255 was not filed. The
correspondence again went unanswered.
explanation is not sufficient to toll the statute of
limitations. Equitable tolling “is only available when
an inmate diligently pursues his claims and demonstrates that
the failure to timely file was caused by extraordinary
circumstances beyond his control.” Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (addressing
§ 2254). See also U.S. v. Cordova, 1999 WL
1136759, * 1 (10th Cir. Dec. 13, 1999) (equitable tolling
applies in § 2255 cases). “[A]n inmate bears a
strong burden to show specific facts to support his claim of
extraordinary circumstances….” Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). He must
provide “specificity regarding the alleged lack of
access and the steps he took to diligently pursue his federal
claims.” Miller v. Marr, 141 F.3d 976, 978
Tenth Circuit has held that the lack of legal assistance is
not extraordinary. Marsh, 223 F.3d at 1220;
Miller, 141 F.3d at 978. This is true even when, for
example, the attorney is dilatory in drafting the petition.
See Marsh, 223 F.3d at 1220 (“[Petitioner
chose to rely upon assistance from the prison legal access
attorney …. The fact that an [attorney] was assisting
in drafting the … petition does not relieve [the
inmate] from the personal responsibility of complying with
the law.”). Beyond citing his attorney's
unresponsiveness, Defendant has not argued that he took any
steps to file his own habeas petition by October 3, 2013 or
that he was prevented from doing so. Equitable tolling is
therefore not warranted in this case.
The Court also notes that none of § 2255(f)'s
statutory tolling provisions apply. Under that section, the
one-year limitation period can be extended where:
(1) The inmate was prevented from making a motion by
“governmental action in violation of the Constitution
or laws of the United States....” § 2255(f)(2);
(2) The motion is based on a “right [that] has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” §
(3) The inmate could not have discovered “the facts
supporting the claim … through the exercise of due
diligence.” § 2255(f)(4).
Response does not raise any of these issues. Consequently,
under 28 U.S.C. § 2255(f)(1) Defendant's Motion must
be dismissed as untimely.
Court determines sua sponte under Habeas Corpus Rule
11(a), the that Defendant has failed to make a substantial
showing that he has been denied a constitutional right, and