United States District Court, D. New Mexico
DENNIS C. ARAGON, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
Court, under Rule 4 of the Rules Governing Section 2255
Proceedings For the United States District Courts, considers
Movant Dennis C. Aragon's Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence By a Person in
Federal Custody (Motion) (CV Doc. 1; CR Doc. 59). The Motion
was not filed within the one year statute of limitations in
28 U.S.C. § 2255(f) and will be dismissed as untimely.
Dennis C. Aragon was indicted on charges of being a felon in
possession of a firearm and ammunition in violation of 15
U.S.C. §§ 922(g)(1) and 924(a)(2). On September 20,
2013, he pled guilty to the indictment by a written Plea
Agreement. (CR Doc. 44). In his Plea Agreement, Aragon waived
his right to appeal and to collaterally attack his conviction
and the sentence imposed, other than on the grounds of
ineffective assistance of counsel in negotiating or entering
into the plea or waiver. (CR Doc. 44 at 7-8).
2010, Aragon had been convicted in New Mexico state court of
possession of a personal-use quantity of heroin and had
received a sentence of probation. (CR Doc. 49 at 6). At the
time he committed the offense in this case, he was on
probation for the 2010 state court conviction and sentence.
(CR Doc. 49 at 6). New Mexico state court charges were
brought against Aragon stemming from the same events giving
rise to his federal charges in this case. See State v.
Aragon, No. D-202-CR-2012-05332.
United States Probation Office prepared a revised Presentence
Report (“PSR”), which calculated a total offense
level of 23 and a criminal history category of V, yielding an
advisory Guidelines sentencing range of 84-105 months. (CR
Doc. 53 at 1). Aragon sought a downward departure, contending
that the four criminal history points that were based on the
2010 conviction and the fact that the instant offense was
committed while he was on probation resulted in
over-representation of his criminal history. Aragon requested
a one level reduction in his criminal history. (CR Doc. 49 at
5-6). Aragon also asked that the Court order his federal
sentence to be served concurrently with any sentence imposed
in his pending state criminal case. (CR Doc. 49 at 9-10). The
United States did not oppose a one level criminal history
downward departure or an order that Aragon's federal
sentence be served concurrently with any state court
sentence. (CR Doc. 52 at 1-2). On March 17, 2014, the Court
accepted the Plea Agreement and sentenced Aragon to 51 months
and 21 days of imprisonment. (CR Doc. 55). The Court ordered
that his federal sentence would run concurrently with any
sentence later imposed in New Mexico case No.
with his Plea Agreement, Aragon did not file any direct
appeal of his conviction and sentence. The Court takes
judicial notice that the charges in New Mexico state court
case No. D-202-CR-2012-05332 were dismissed on September 15,
2014 by a Nolle Prosequi filed by the State of New
Mexico because Aragon was serving the federal sentence
imposed in this case for charges stemming out of the same
incident. United States v. Ahidley, 486 F.3d 1184,
1192 n. 5 (10th Cir.2007) (The Court may take judicial notice
of publicly filed records in this court and other courts
concerning matters that bear directly upon the disposition of
the case at hand). The Nolle Prosequi was filed in
state court several months after the deadline for filing any
direct appeal of Aragon's federal conviction and
sentence. See Fed. R. App. P. 4(b)(1).
filed his Motion on August 10, 2016. (CV Doc. 1; CR Doc. 59).
Aragon argues two grounds in support of his Motion:
“Trial Counsel rendered ineffective assistance for
failing to consult the petitioner about an appeal and also
failing to perfect an appeal, once his state charges were
dismissed after his sentence on federal gun violations
resulting in the denial of his Sixth Amendment rights under
the United States Constitution . . .
Petitioner's Counsel rendered ineffective assistance for
failing to object to the Pre-Sentence Report.”
(CV Doc. 1 at 11, 13; CR Doc. 59 at 11, 13).
August 16, 2016, the Court entered an Order directing Aragon
to show cause why his Motion should not be dismissed as
untimely under the 28 U.S.C. § 2255(f) one-year statute
of limitations. (Doc. 60). Aragon responded that he did not
file his Motion within the one-year time limit because his
attorney had advised him that she would file an appeal
“because the charges that the Court used to enhance his
sentence were dismissed soon after his conviction in federal
court” and he was unaware that his attorney had not
filed a notice of appeal. (CR Doc. 62).
is proceeding under 28 U.S.C. § 2255. Section 2255(f)
“A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
(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 ...