United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on the Motion to Vacate Sentence
Under 28 U.S.C. § 2255 (“Motion”) (Doc.
367). Defendant Mark Hopkins is incarcerated and
proceeding pro se. He asks the Court to modify his
conviction and sentence for tax evasion because his untainted
assets were frozen and therefore unavailable to fund his
defense. For the reasons below, the Court will dismiss the
Motion as untimely but grant a certificate of appealability.
September 29, 2010, Defendant was convicted by a jury of tax
evasion and conspiracy to defraud the United States in
violation of 26 U.S.C. § 7201 and 18 U.S.C. § 371.
(Doc. 270). Defendant was sentenced to 120 months
imprisonment followed by a three-year term of supervised
release. (Doc. 308). The Court also ordered him to pay the
Internal Revenue Service (“IRS”) $1, 744, 222.26
in restitution. Id. Judgment on the conviction and
sentenced was entered on June 2, 2011. Id.
appealed his conviction and sentence to the United States
Court of Appeals for the Tenth Circuit (“Tenth
Circuit”) on June 8, 2011. (Doc. 312). By a mandate
issued March 12, 2013, the Tenth Circuit affirmed. (Doc.
353). Defendant did not pursue any further appeals. Judgment
on his conviction and sentence therefore became final no
later than June 11, 2013, the first business day following
the expiration of the 90-day period to seek review from the
United States Supreme Court. See United States v.
Prows, 448 F.3d 1223, 1227 (10th Cir. 2006) (“In
the context of the one-year limitation period for filing a
§ 2255 motion, a criminal conviction becomes final when
the Supreme Court affirms it on direct review, denies
certiorari, or (in the absence of a certiorari petition) the
time for filing a certiorari petition expires.”).
Defendant filed the instant § 2255 Motion on April 6,
2017. (Doc. 367).
§ 2255 motion must generally be filed within one year of
‘the date on which the judgment of conviction becomes
final.'” United States v. Mulay, --- Fed.
App'x ---, 2018 WL 985741 (10th Cir. Feb. 20, 2018)
(unpublished) (quoting 28 U.S.C. § 2255(f)(1)). 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)
may consider timeliness of a § 2255 motion sua
sponte unless the government affirmatively waives the
issue. See Wood v. Milyard, 566 U.S. 463, 473-74
acknowledges the Motion was filed nearly three years after
his conviction and judgment became final. (Doc. 367).
However, he argues that “[n]ew law, Luis v.
U.S., [136 S.Ct. 1083 (2016)] opens the window for
§ 2255 for new consideration.” (Doc. 367, p. 12).
Luis held that the Government's pretrial
restraint of untainted assets violates a defendant's
constitutional rights if it prevents the defendant from
hiring counsel of his or her choice. Defendant argues a
pre-trial IRS lien prevented him from retaining different
discussed above, to obtain relief under Luis, the
case must provide a new right made retroactive on collateral
review. 28 U.S.C. § 2255(f)(1). “[A] case
announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction
became final.” United States v. Taylor, 672
Fed. App'x 860, 864 (10th Cir. 2016) (citing Teague
v. Lane, 489 U.S. 288 (1989)). “Rules are dictated
by precedent when they are ‘apparent to all reasonable
jurists.'” United States v. Greer, 881
F.3d 1241, 1245 (10th Cir. 2018) (quotations omitted).
“Conversely, a rule is not new if it is merely an
application of an existing right or principle.”
Supreme Court's opinion in Luis was based
primarily on the application of two existing cases:
Caplin & Drysdale, Chartered v. United States,
491 U.S. 617 (1989) and U.S. v. Monsanto, 491 U.S.
600 (1989). For this reason, courts have consistently held
that Luis is not retroactively applicable on review.
See Thaw v. United States, 2016 WL 4623053 (N.D.
Tex., Aug. 16, 2016) (unpublished); Noel v. United
States, 2017 WL 548985 (W.D. N.C., Feb. 8, 2017)
(unpublished); Valencia-Trujillo v. United States,
2017 WL 3336491 (M.D. Fla. Aug. 4, 2017) (unpublished);
Clark v. Harmon, 2017 WL 2493271, at *2 (N.D. Tex.
May 10, 2017) (unpublished); Farkas v. Andrews, 2017
WL 4518684 (E.D. N.C. Oct. 10, 2017) (unpublished); Rand
v. United States, 2018 WL 1114376 (N.D. Tex. Jan. 8,
2018) (unpublished); United States v. Watson, 2017
WL 4698962 (S.D. Tex. Oct. 19, 2017) (unpublished).
Luis therefore does not afford Defendant a later
accrual date for purposes of § 2255(f)(3), and the
Motion is time-barred under § 2255(f)(1).
the question of retroactive applicability of Luis
has not been addressed by the Tenth Circuit, the Court will
grant Defendant a Certificate of ...