United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DISMISSING MOTION TO
MATTER is before the Court on the pro se Motion to
Dismiss Indictment Pursuant to Luis v. United States Under
Federal Criminal Rule 12 filed by Defendant, Sharon Hopkins,
on September 12, 2016 (“Motion to Dismiss
Indictment”). (Doc. 354). The Court characterizes
Hopkins' Motion as a motion to vacate, set aside, or
correct her sentence under 28 U.S.C. § 2255 and
dismisses the Motion as time-barred by the one-year statute
April 9, 2009, Defendant Sharon Hopkins was charged with
multiple counts of conspiracy to defraud the government and
tax evasion. (Doc. 1). She was convicted on eight counts by a
jury on September 29, 2010 and the Court sentenced her to 97
months of imprisonment. (Doc. 272, 307). Hopkins appealed her
conviction and sentence to the United States Court of Appeals
for the Tenth Circuit on June 8, 2011. (Doc. 311). The Tenth
Circuit affirmed the conviction and sentence and issued its
Mandate on February 27, 2013. (Doc. 352).
filed her Motion to Dismiss Indictment on September 12, 2016.
(Doc. 354). In her Motion to Dismiss Indictment, Hopkins
argues that, at trial, her Sixth Amendment constitutional
right to counsel was violated by the freezing of untainted
assets. Hopkins claims to be proceeding under Fed. R. Crim.
P. 12 and relies on the United States Supreme Court's
decision in Luis v. United States, ___ U.S.___, 136
S.Ct. 1083 (2016). (Doc. 354). Hopkins asks the Court for
“an ORDER reversing the judgment and to dismiss the
indictment.” (Doc. 354 at 18).
United States of America responded to Hopkins' Motion to
Dismiss Indictment on September 23, 2016. (Doc. 356). In its
Response, the United States contended that Hopkins could not
properly proceed under Fed. R. Crim. P. 12 and that her
Motion should be construed as a § 2255 motion to vacate,
set aside, or correct her sentence. (Doc. 356). The United
States also raised the defense that, construed as a §
2255 motion, Hopkins' Motion to Dismiss Indictment was
untimely under the one-year statute of limitations in 28
U.S.C. § 2255(f). (Doc. 356).
replied to the United States' Response on October 13,
2016. (Doc. 359). In her Reply, Hopkins again argued that the
Supreme Court's decision in Luis authorizes her
to proceed under Rule 12. Hopkins did not dispute that, if
characterized as a § 2255 motion, her claim would be
time-barred but, instead, vehemently argued that the Motion
to Dismiss Indictment should not be characterized as a §
2255 motion. (Doc. 359).
September 28, 2016, the Court entered an Amended Order
advising Hopkins that the Court intended to recharacterize
Defendant Hopkins's Motion to Dismiss Indictment as a
first 28 U.S.C. § 2255 motion to vacate, set aside, or
correct sentence. (Doc. 358). Pursuant to Castro v.
United States, 540 U.S. 375 (2003), when
a court recharacterizes a pro se litigant's motion as a
first § 2255 motion . . .the district court must notify
the pro se litigant that it intends to recharacterize the
pleading, warn the litigant that this recharacterization
means that any subsequent § 2255 motion will be subject
to the restriction on “second or successive”
motions, and provide the litigant an opportunity to withdraw
the motion or to amend it so that it contains all the §
2255 claims he believes he has.
Id. at 383. Consistent with Castro, the
Court afforded Hopkins an opportunity to withdraw the motion
or to amend it to add additional claims she may have. (Doc.
358). See Rule 2 of the Rules Governing Section 2255
Proceedings for the United States District Courts. Hopkins
declined to withdraw or amend her Motion to Dismiss
Indictment and, instead, filed an Objection to the
Court's September 28, 2016 Amended Order. (Doc. 364).
Hopkins appealed the Court's Castro Order to the
Tenth Circuit Court of Appeals. (Doc. 360). The Tenth Circuit
dismissed her appeal as improperly taken from an
interlocutory order. (Doc. 365, 366).
Court Characterizes Hopkins' Motion to Dismiss Indictment
As a § 2255 Motion to Vacate, Set Aside, or Correct
Hopkins' Motion to Dismiss Indictment is brought under
Fed. R. Crim. P. 12 and asks to have the Judgment on her
conviction and sentence set aside. (Doc. 354 at 18). However,
Defendant may not file a Rule 12 motion after her conviction
and sentencing. See Fed. R. Crim. P. 12(b) and (c). Defendant
may only challenge her conviction and sentence by a motion
under 28 U.S.C. § 2255. See 28 U.S.C. §
2255(a) and (e); Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996) (“The exclusive remedy for
testing the validity of a judgment and sentence, unless it is
inadequate or ineffective, is that provided for in 28 U.S.C.
clearly seeks to have her conviction and sentence set aside
and the charges against her dismissed. She may seek her
requested relief only through a § 2255 motion. Because
this proceeding would constitute Hopkins' first §
2255 motion, consistent with Castro v. United
States, she was given the opportunity to either withdraw
her filing or amend it to assert all available grounds for
§ 2255 relief. (Doc. 358). She neither withdrew nor
amended her Motion to Dismiss Indictment but, instead,
objected to the Court's characterization of her filing as
a § 2255 motion. (Doc. 364). The Court overrules her
objection and characterizes her Motion to Dismiss Indictment
as a motion to vacate, set aside, or correct sentence under
28 U.S.C. § 2255.
§ 2255 Motion is Time-Barred
2255(f) sets out the statute of limitations governing motions
for collateral ...