United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on Defendant's Motion to
Vacate Sentence, Set Aside, or Correct Sentence Under 28
U.S.C. § 2255. (Doc.124)
(“Motion”). Defendant is incarcerated and
proceeding pro se. He asks the Court to modify his
sentence to accurately reflect the terms of his plea
agreement. For the reasons below, the Court must dismiss the
Motion as untimely.
6, 2013, Defendant pled guilty to interfering with interstate
commerce by robbery in violation 18 U.S.C. § 1951(a).
(Doc. 96). Under the plea agreement, the parties stipulated
that Defendant's sentence would be 120 months.
Id. at ¶ 9. The agreement further states:
“the United States does not oppose the service of the
sentence in the instant case concurrently with any remaining
sentence in CR-200603134 as well as the discharged sentence
in CR 11-1176.” Id. at ¶ 9(b). On August 9,
2013, the Court (Hon. Scott Skavdahl) entered judgment on
Defendant's conviction and sentence
(“Judgment”). (Doc. 102). The Judgment provides
that the 120 month sentence will run concurrent with
Defendant's state sentence in No. D-202-CR-20060313 but
does not mention 11-CR-1176. (Doc. 102). No. appeal was
filed. Defendant's conviction therefore became final on
August 26, 2013, the first business day following the
expiration of the appeal period. See United States v.
Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006); U.S.
v. Garcia-Roman, 466 Fed. App'x 750, 751 (10th Cir.
17, 2016, Defendant filed his first motion to vacate or
correct sentence pursuant 28 U.S.C. § 2255. (Doc. 105).
Defendant sought relief under Johnson v. United
States, 135 S.Ct. 2551 (2015). He asserted section 4B1.2
of the United States Sentencing Guidelines - which provided
the basis for his sentence - was unconstitutionally vague.
The United States filed a response on February 10, 2016.
(Doc. 110). Several weeks later, and before any recommended
ruling was filed, the Supreme Court issued its decision in
Beckles v. United States, 137 S.Ct. 886 (2017).
Beckles held that the guidelines are not subject to
void-for-vagueness challenges. By an order entered April 26,
2017, the Court allowed Defendant to voluntarily dismiss the
first § 2255 motion without prejudice pursuant to
Fed.R.Civ.P. 41(a)(2). (Doc. 114).
filed a second “Motion/Letter to Rescind” on May
15, 2017. (Doc. 116). He argued his 120-month sentence is
inconsistent with the plea agreement. Specifically, Defendant
pointed out that the plea agreement contemplates his robbery
sentence would run concurrent with his discharged federal
sentence in 11-CR-1176, but the Judgment only references his
state sentence in No. D-202-CR-200603134. By a Memorandum
Opinion and Order entered June 9, 2017, the Court gave notice
that it intended to construe the Motion as a motion to modify
his sentence under § 2255. (Doc. 118). See also
Castro v. United States, 540 U.S. 375, 383 (2003)
(advising district court to notify pro se plaintiffs
if it intends to recharacterize a pleading as a first §
2255 motion). The Court also required Defendant to show cause
why such motion should not be dismissed as untimely, as it
was filed nearly three years after the Judgment became final.
response, Defendant “ask[ed] the Court to
‘NOT' construe th[e] letter … as a 
U.S.C. § 2255 Motion to Correct or Vacate
Sentence.” (Doc. 119). Instead, Defendant
“ask[ed] only that it be taken as a request to correct
my Judgment and Commitment and to reflect my plea.”
Id. A subsequent letter reiterated Defendant's
desire “to have [his] judgment and commitment reflect
[his] plea agreement.” (Doc. 120). By a Memorandum
Opinion and Order entered November 29, 2017, the Court agreed
not to construe the second motion under § 2255. (Doc.
121). However, the Court denied the second motion without
prejudice because § 2255 is the only vehicle for
correcting a sentence. Id.
filed the instant Motion on December 21, 2017, which
explicitly seeks relief under § 2255. (Doc. 124).
Defendant again asks the Court “to correct [his]
judgment and commitment to reflect the plea agreement or to
vacate the sentence and order a re-sentencing.”
Id. at p. 1.
Construing the Previous Motions
initial matter, the Court must decide whether the instant
§ 2255 motion is second or successive. A § 2255
motion “that does not result in an adjudication of the
merits of the habeas claims … will not count as a
first habeas petition for purposes of determining whether
later habeas petitions are second or successive.”
Douglas v. Workman, 560 F.3d 1156, 1188 n. 18 (10th
Cir. 2009). “[T]o be considered successive, …
[t]he district court must have engaged in substantive
review.” Haro-Arteaga v. United States, 199
F.3d 1195, 1196 (10th Cir.1999). As the Court previously
found, the first § 2255 motion was not dismissed on the
merits. (Doc. 114, p. 3). The ruling on the second
“Motion to Rescind Sentence” also explicitly
declined to reach the merits of any § 2255 habeas
claims. See (Doc. 121) (noting that “[i]f
Defendant changes his mind and decides to seek relief under
§ 2255 at a later time, that motion will not be
considered second or successive”). The instant Motion
therefore qualifies as Defendant's first § 2255
Timeliness of the § 2255 Motion
§ 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 ...