United States District Court, D. New Mexico
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
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