United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
KEA W. RIGGS UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Martin Nunez's Motion to Vacate
Conviction Under 28 U.S.C. § 2255 (Doc.
Nunez asks the Court to vacate his methamphetamine conviction
based on, inter alia, ineffective assistance of counsel.
Having reviewed the record and federal law, the Court must
dismiss the Motion as untimely.
2016, Nunez pled guilty to possession with intent to
distribute 500 grams or more of methamphetamine. (Doc. 19).
The Court (Hon. Kenneth Gonzales) sentenced him to 108 months
imprisonment. (Doc. 27 at 2). Judgment on the conviction and
sentence was entered April 11, 2017. Id. Nunez did
not initially appeal. Therefore, the Judgment became final no
later than April 26, 2017, following the expiration of the
14-day appeal period. See United States v. Prows,
448 F.3d 1223, 1227-28 (10th Cir. 2006) (conviction becomes
final under § 2255 upon expiration of direct appeal
period); Fed. R. App. P. 4(b) (federal defendants have
fourteen days to appeal a criminal judgment).
months later, on June 22, 2017, Nunez filed a direct appeal.
(Doc. 28). The Tenth Circuit Court of Appeals dismissed the
appeal as untimely on March 15, 2018. (Doc. 49). Nunez filed
the instant § 2255 proceeding on May 14, 2018. (Doc.
50). He contends he received ineffective assistance of
counsel in connection with the plea and that he was sentenced
above the guideline range.
Court screened the § 2255 Motion sua sponte
under Habeas Corpus Rule 4(b) and determined it was
time-barred. By an Order entered June 10, 2019, Nunez was
directed to show cause why his Motion should not be
dismissed. (Doc. 54). Nunez filed a response, and the matter
is fully briefed. (Doc. 55).
corpus motions under § 2255 must generally be filed
within one year after the defendant's conviction becomes
final. See 28 U.S.C. § 2255(f). The one-year
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).
the limitation period began to run on April 26, 2017, when
the conviction became final. See Prows, 448 F.3d at
1227-28. It expired one year later on April 26, 2018,
rendering the May 14, 2018 Motion untimely. In his show-cause
response, Nunez raises two arguments to overcome the
time-bar. First, he contends the one-year period did not
begin to run until the Tenth Circuit dismissed his untimely
appeal (i.e. March 15, 2018). (Doc. 55 at 1-2).
However, the Tenth Circuit has repeatedly held that an
"untimely notice of appeal d[oes] not delay the onset
of the limitations period" under § 2255. United
States v. Terrones-Lopez, 447 Fed. App'x. 882,
884-85 (10th Cir. 2011). See also United States v.
Smith, 215 F.3d 1338 (10th Cir. 2000)
("[Petitioner] did not pursue her direct appeal within
the applicable time limits and her unsuccessful efforts do
not toll the statute of limitations" under § 2255).
also seeks equitable tolling based on his "due diligence
and ignorance of the laws." (Doc. 55 at 2). Equitable
tolling is only 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). Nunez has not identified any
circumstances beyond his control, aside from his
misunderstanding of the appeal deadline. "[I]ignorance
of the law" does not warrant tolling, "even for an
incarcerated pro se petitioner." Id.
Nunez therefore cannot overcome the time-bar, and the §
2255 proceeding must be dismissed. The Court will also deny a
certificate of appealability under Habeas Corpus Rule 11.
Nunez has not made a substantial showing of the denial of a
constitutional right or demonstrated that reasonable jurists
would find the time-bar debatable. See 28 U.S.C.
§ 2253(c)(2) (setting forth the standard for granting or
denying a certificate of appealability in habeas
proceedings); Slack v. McDaniel, 529 U.S. 473, 484
IT IS ORDERED that Martin Nunez's Motion
to Vacate Conviction Under 28 U.S.C. ...