United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
matter comes before the Court on Defendant's Motion to
Vacate or Modify Sentence Under 28 U.S.C. § 2255 (Doc.
118.) Defendant is incarcerated and appears pro se.
Having reviewed the matter sua sponte under Habeas
Corpus Rule 4(b), the Court will require Defendant to show
cause why his motion should not be dismissed as untimely and
why the Court should not restrict additional collateral
Court set out the background of this case in its January 2,
2018 Memorandum Opinion and Order and incorporates it here by
reference. (See Doc. 103 at 1-2.) In short,
Defendant pleaded guilty to conspiracy and possession with
intent to distribute 5 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and
846, and 18 U.S.C. § 2. (See Docs. 2; 44.) The
Court accepted the plea and sentenced Defendant to 70
months' imprisonment, to run concurrently with
Defendant's state sentence, followed by four years'
supervised release. (See Doc. 85.) Judgment on the
conviction and sentence was entered October 15, 2014.
(Id.) Defendant did not appeal. His conviction
therefore became final on October 29, 2014, the first
business day following the expiration of the 14-day appeal
period. See United States v. Prows, 448 F.3d 1223,
1227-28 (10th Cir. 2006); United States v.
Garcia-Roman, 466 Fed.Appx. 750, 751 (10th Cir. 2012).
2017, Defendant filed a pro se motion to modify his
federal sentence. (See Docs. 90; 95.) His primary
argument was that his federal sentence commenced on the date
of his arrest-August 17, 2012-even though he remained in
state custody until after his federal sentencing. By
Memorandum Opinion and Order entered January 2, 2018, the
Court declined to modify Defendant's sentence.
(See Doc. 103.) The Court explained that under
binding Tenth Circuit law, Defendant was not received into
federal custody until after his sentencing hearing.
(Id. at 3.)
that ruling, Defendant filed various pro se motions
urging the Court to reconsider and/or release him from
custody. (See Docs. 105; 107; 113; 116; and 117.)
The Court entered two opinions denying relief. (See
Docs. 112; 128.) Defendant appealed, but the Tenth Circuit
found his sentence cannot be modified unless he is entitled
to relief under 28 U.S.C. § 2255. (See Doc.
129.) Defendant filed the instant § 2255 Motion on July
5, 2018. (Doc. 118.) He alleges counsel rendered ineffective
assistance, and that the Court violated his due process
rights by allowing a delay between the date he entered his
guilty plea and the sentencing hearing. (Id. at
4-5.) Defendant asks the Court to vacate his sentence and
order his immediate release. (Id. at 10.)
Timeliness of the § 2255 Motion
under § 2255 must generally be filed within one year
after the defendant's conviction becomes final. See
United States v. McGaughy, 670 F.3d 1149, 1152 n.1 (10th
Cir. 2012) (citing 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 . . . .” 28 U.S.C. §
(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.” Id.
§ 2255(f)(3); or
(3) The inmate could not have discovered “the facts
supporting the claim . . . through the exercise of due
diligence.” Id. § 2255(f)(4).
tolling may also be available “when an inmate
diligently pursues his claims and demonstrates that the
failure to timely file was caused by extraordinary
circumstances beyond his control.” Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (addressing
§ 2254). See also United States v. Cordova, 202
F.3d 283 (10th Cir. 1999) (equitable tolling applies in
§ 2255 cases).
appears the one-year limitation period expired in 2015,
several years before Defendant filed his § 2255 motion.
Defendant acknowledges timeliness may be an issue.
(See Doc. 118 at 9.) However, he explains he
recently researched the case and learned he did not receive
credit for certain periods of pre-sentencing confinement.
(Id.). This information, without more, is
insufficient to justify statutory or equitable tolling. The
Court will allow Defendant to provide a more detailed
explanation; the response must be postmarked no later than
February 22, 2019. Failure to timely respond
to this order or otherwise demonstrate grounds for tolling
may result in dismissal of the § 2255 motion without