Report & Recommendation on Motion to Vacate, Set Aside or Correct Sentence
JAMES F. METCALF, Magistrate Judge.
I. MATTER UNDER CONSIDERATION
Movant has filed an Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 7). The Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
Movant was indicted in this District on one count each of Possession with Intent to Distribute a Controlled Substance, Methamphetamine and Possessing a Firearm in Relation to a Drug Trafficking Crime. (CRDoc. 1) (Filings in the underlying criminal case, CR-17-8014-PHX-DGC are referenced herein as "CRDoc. ___.") He eventually entered a Plea Agreement (CRDoc. 26) and entered a guilty plea to the charges, with various concessions (CR Doc. 17, M.E. 3/14/17). The plea was accepted, and on June 5, 2017 Movant was sentenced to consecutive terms of 48 months and 60 months in prison, followed by 60 months supervised release. (CRDoc. 20, Order 4/5/17; CRDoc. 25, M.E. 6/5/17; and CRDoc. 27, Judgment.)
Movant did not file a direct appeal. (Motion at 2.)
On November 26, 2018 (over 17 months after sentencing), Movant filed a "Motion to Correct Sentence" (Doc. 1), pursuant to Federal Rule of Criminal Procedure 35(a). That motion was denied as delinquent (being due within 14 days after sentencing), and because the grounds asserted were not "arithmetical, technical, or other clear error." (Order 1/7/19, Doc. 6.) Movant was given notice that the Court intended to construe the motion as one under 28 U.S.C. § 2255 and a deadline to either withdraw the motion or file an amended motion on the proper form. (Id.)
On January 24, 2019, Movant filed the instant Amended Motion to Vacate (Doc. 7, herein "Motion") pursuant to 28 U.S.C. § 2255.
Movant asserts that his sentences should have been concurrent, rather than consecutive. Movant alleges that his counsel was ineffective for failing to object to the consecutive sentences and misled Movant into believing that "the trust he ensured in his defense team was for the full benefit of himself." Movant also asserts that the prosecution "hypothesized and made high argument."
(Order 2/27/19, Doc. 8 at 2.)
On April 26, 2019, Respondent filed its Response (Doc. 9) to the Motion, arguing that: (1) the motion is untimely; and (2) concurrent sentences on the firearms offense is precluded by 18 U.S.C. § 924(c)(1)(D)(ii).
Movant was given through June 3, 2019 to reply in support his Motion. (Order 4/30/19, Doc. 10.) Movant has not replied.
III. APPLICATION OF LAW TO FACTS
Statute of Limitations — Respondent argues the Motion is untimely. The statute of limitations applicable to habeas proceedings by federal prisoners generally provides that motions to vacate filed beyond the one year limitations period are barred and must be dismissed. 28 U.S.C. § 2255(f).
Commencement — A federal habeas petitioner's time to file under 28 U.S.C. §2255 generally begins to run on "the day on which the judgment of conviction becomes final." 28 U.S.C. §2255(f).1 Although §2255 does not define "final", the Supreme Court has applied its ordinary standard of finality. "Finality attaches when [the Supreme] Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527 (2003). Where a movant did not file a direct appeal, "the statute of limitations within which she had to file her § 2255 motion began to run upon the expiration of the time during which she could have sought review by direct appeal." United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001).
Here, Movant did not file a direct appeal or a certiorari petition. Thus, his one year commenced running on the expiration of his time to file a direct appeal. His time for doing so expired 14 days after entry of the judgment of conviction. See Federal Rule of Appellate Procedure 4(b)(1)(A). The Judgment (CRDoc. 27) was entered on June 5, 2017 (although filed on June 6, 2017). Thus, Movant had through Monday, June 19, 2017 to file his direct appeal. He did not do so, and accordingly his judgment of conviction became final on that day. Hs one year began running thereafter, and expired on Tuesday, June 19, 2018.
Thus, his Amended Motion (Doc. 7), filed January 24, 2019, was over seven months delinquent. Even if his Amended Motion could relate back to his original Motion (Doc. 1), see Fed. R. Civ. P. 15(c), that Motion was not filed until November 26, 2018, and was almost five months delinquent.
Mailbox Rule — "In determining when a pro se state or federal petition is filed, the `mailbox' rule applies. A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing." Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Even if it were assumed that Movant's original Motion was delivered for mailing on its signature date of November 19, 2018 (Doc. 1 at 3), and thus deemed filed as of that date, it still was five months delinquent.
Equitable Tolling — In U.S. v. Battles, 362 F.3d 1195 (9th Cir. 2004), the Ninth Circuit held the statute of limitations under 28 U.S.C. § 2255 may be equitably tolled.
A § 2255 movant is entitled to equitable tolling "only if he shows `(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." The movant must show that the extraordinary circumstances "`were the cause of his untimeliness.'"
United States v. Buckles, 647 F.3d 883, 889 (9th Cir. 2011) (citations omitted). Movant bears the burden of proof on the existence of cause for equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Movant asserts no grounds for equitable tolling. (See Motion, Doc. 7 at 9.) Nothing in the record provides a basis for equitable tolling.
Actual Innocence — Similarly, to avoid a miscarriage of justice, the habeas statute of limitations does not preclude "a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence." McQuiggin v. Perkins, 133 S.Ct. 1924, 1935 (2013). But here, Movant makes no claim of actual innocence.
Conclusion — Movant's Amended Motion to Vacate is untimely, and must be dismissed with prejudice.
Because the motion is plainly untimely, the undersigned does not reach Respondents' argument on Movant's challenge to consecutive sentencing.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required — Rule 11(a), Rules Governing Section 2255 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Motion to Vacate is brought pursuant to 28 U.S.C. § 2255, and challenges Movant's federal criminal judgment or sentence. The recommendations if accepted will result in Movant's Motion being resolved adversely to Movant. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards — The standard for issuing a certificate of appealability ("COA") is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
Standard Not Met — Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Motion to Vacate, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that Movant's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed January 24, 2019 (Doc. 7) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 10, Rules Governing Section 2255 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that "[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages."
