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 Pro
Se Motion to Vacate or Modify Sentence Under 28 U.S.C.
§ 2255. (Doc. 118.) 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
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.)
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).
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.)
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.)
Court screened the Petition sua sponte pursuant to
Habeas Corpus Rule 4(b) 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.)
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:
inmate was prevented from making a motion by
“governmental action in violation of the Constitution
or laws of the United States . . . .” §
motion is based on a “right [that] has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” §
inmate could not have discovered “the facts supporting
the claim . . . through the exercise of due diligence.”
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, ...