United States v. Gutierrez

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant/Movant Charles Antonio Gutierrez's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, filed pro se, on February 7, 2017 (CR Doc. 61; CV Doc. 1) and Defendant/Movant's Amended Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 filed June 19, 2017 (CR Doc. 69; CV Doc. 7) (“Motion”). The Court will dismiss the § 2255 Motion as barred by the statute of limitations.

         I. Factual Background and Procedural History

         On June 10, 2010, a federal grand jury indicted Gutierrez with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a). (CR Doc. 2.) Gutierrez pled guilty to the indictment on April 8, 2011. (CR Doc. 42.) In a Rule 11(c)(1)(C) Plea Agreement, Gutierrez stipulated that a 180-month sentence was the appropriate sentence. (CR Doc. 42 at 5). Gutierrez also waived his appellate and collateral review rights other than on the issue of ineffective assistance of counsel. (CR Doc. 42 at 9). The Presentence Report (“PSR”) of May 4, 2011 concluded that Defendant had three prior convictions for violent felonies and that his sentence should be enhanced pursuant to the Armed Career Criminal Act (“ACCA”). (Doc. 66 at 1, 10.) The PSR identified the three qualifying convictions as: (1) a conviction for Residential Burglary pursuant to NMSA 1978, § 30-16-3 on March 26, 2001; (2) a conviction for Aggravated Burglary Armed after Entering pursuant to NMSA 1978, § 30-16-4(B) on July 2, 2004; and, (3) a conviction for Residential Burglary pursuant to NMSA 1978, § 30-16-3 and Battery Upon a Peace Officer pursuant to NMSA 1978, § 30-22-24 on May 26, 2005. (PSR at 9-14.)

         The Court accepted the Plea Agreement and sentenced Defendant to fifteen years (180 months) of imprisonment, the mandatory minimum sentence under the ACCA, and entered a judgment of conviction against Defendant on June 28, 2011. (CR Doc. 45, 46). Consistent with the Plea Agreement, Gutierrez did not take an appeal from the final Judgment. Gutierrez filed his pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody on February 7, 2017. (CR Doc. 61; CV Doc. 1.) On June 19, 2017, Gutierrez then filed a counseled Amended Section 2255 Motion, which is presently before the Court on Defendant's behalf. (CR Doc. 69; CV Doc. 7.)

         In his Amended Section 2255 Motion, Gutierrez asks the Court to vacate his sentence and resentence him without the enhancement, because he claims his prior conviction for aggravated battery no longer qualifies as a violent felony under the ACCA in light of the United States Supreme Court's decisions in Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (2015) and Mathis v. United States, __U.S.__, 136 S.Ct. 2243 (2016). (CR Doc. 69; CV Doc. 7.) The Government responded in opposition to the Amended Section 2255 Motion on July 28, 2017. (CR Doc. 74; CV Doc. 11). In its response, the Government argues that the § 2255 Motion is untimely and barred by the statute of limitations of § 2255(f). (CR Doc. 74 at 1, 3-7; CV Doc. 11 at 1, 3-7).^[1]

         II. Analysis

         Gutierrez 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.”

28 U.S.C. § 2255(a). Section 2255(f) sets out the statute of limitations governing motions for collateral review of convictions and sentences:

“A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-

(1) the date on which the judgment of conviction becomes final;

(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 governmental action;

(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 ...