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United States v. Marker

United States District Court, D. New Mexico

January 16, 2020

WARREN B. MARKER, Defendant.



         This matter comes before the Court on Defendant's Pro Se Motion to Vacate or Modify Sentence Under 28 U.S.C. § 2255. (Doc. 118.[1]) The Court previously directed Defendant to show cause why his Motion should not be dismissed as untimely and why the Court should not restrict additional collateral attacks. Having reviewed the show-cause response, the Court will dismiss the Motion and enter filing restrictions.

         I. Background

         On August 17, 2012, Defendant was arrested on charges of 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 Doc. 2; Aug. 17, 2012 CM/ECF text entry.) At the time, Defendant was in the custody of the State of New Mexico on unrelated charges. (See Doc. 5.) The state custodian was directed to surrender Defendant to the United States Marshal Service (USMS) for prosecution in the federal case, but the USMS was “authorized to return Defendant to the custody [from] whence he came during the pendency of this action when his presence [was] not needed.” (Doc. 6.)

         Defendant pleaded guilty to the federal charges on January 13, 2013. (Doc. 44.) This 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. (Doc. 85.) Judgment on the conviction and sentence was entered October 15, 2014. (Id.) Defendant did not appeal. His conviction therefore became final no later than October 30, 2015, 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 a Memorandum Opinion and Order entered January 2, 2018, the Court declined to modify Defendant's sentence. (Doc. 103.) The Court explained that a federal sentence does not commence until a prisoner is actually received into federal custody, and Defendant was not received into federal custody until after his sentencing hearing. (Id. at 3.)

         After 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; 117.) The Court entered two opinions denying relief. (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. (Doc. 129.) Defendant filed the instant § 2255 Motion (Doc. 118) on July 5, 2018. 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. (Id. at 10.)

         The Court screened the Petition sua sponte pursuant to Habeas Corpus Rule 4(b)[2] and determined the Petition appears time-barred on its face. As part of the record-review, the Court also became concerned by Defendant's lengthy and abusive filing history. By a Memorandum Opinion and Order to Show Cause (Order to Show Cause) entered January 16, 2019, the Court directed Defendant to show cause, if any, why the Motion should not be dismissed as untimely and why filing restrictions should not be imposed. (Doc. 131.) Defendant timely filed his Response, and the matter is ready for review. (See Doc. 132.)

         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 . . . .” § 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.” § 2255(f)(3); or

         (3) The inmate could not have discovered “the facts supporting the claim . . . through the exercise of due diligence.” § 2255(f)(4).

         As noted above, the federal Judgment became final no later than October 30, 2015. The one-year period therefore expired on October 31, 2016, nearly two years before Defendant filed his § 2255 Motion. In his show-cause response, Defendant contends tolling applies under § 2255(f)(4). (See Doc. 132 at 8.) He argues he could not have discovered the facts supporting his claim until after June 1, 2017, when his amended state criminal judgment became final. (Id. at 6.) Sometime after that date, Defendant met with a case manager to calculate his release date, and he was “total[ly] surprise[d]” to learn he did not receive federal credit for pre-sentencing confinement. (Id.) Defendant further contends he was “completely lost” and reached out to federal public defenders for assistance, ...

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