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United States v. Marker

United States District Court, D. New Mexico

January 16, 2019

WARREN B. MARKER, Defendant.



         This 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 attacks.

         1. Background

         The 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).

         In July 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.)

         Following 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.)

         II. Timeliness of the § 2255 Motion

         Motions 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. § 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.” 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).

         Equitable 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).

         It 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 further notice.

         III. Restrictions ...

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