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United States v. Rodriguez

United States District Court, D. New Mexico

May 18, 2018



         This 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”).[1] 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.


         On June 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.”[2] 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. 2012).

         On June 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).

         Defendant 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.

         In response, Defendant “ask[ed] the Court to ‘NOT' construe th[e] letter … as a [28] 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.

         Defendant 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.


         I. Construing the Previous Motions

         As an 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 habeas petition.

         II. Timeliness of the § 2255 Motion

         “A § 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 ...

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