SUSAN OKI MOLLWAY, Chief District Judge.
Before considering the merits of Defendant Ethan Motta's motion for relief under 28 U.S.C. § 2255, this court must determine whether the motion was timely filed. Having appointed counsel for Motta and having held a multi-day hearing dedicated to the timeliness issue, the court determines that Motta's § 2255 motion was untimely. Accordingly, the court dismisses Motta's § 2255 motion.
Motta was convicted of a number of racketeering-related crimes. The most serious charges were two murder charges and one attempted murder charge. The murders and attempted murder involved shootings that occurred in broad daylight on a public golf course. The killings were the culmination of a battle to control the lucrative business of providing security services at game rooms where illegal gambling was occurring in Hawaii. Motta's conviction and sentence were affirmed by the Ninth Circuit.
Motta is now seeking relief from his mandatory life sentence under 28 U.S.C. § 2255, which provides for a motion by an incarcerated federal defendant to vacate, set aside, or correct a sentence on the ground "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."
A motion under § 2255 must be filed within one year of the latest of
28 U.S.C. § 2255(f).
Motta concedes that the only applicable subsection of § 2255(f) is subsection 1, which sets forth a deadline of one year from the date the judgment became final. He is not relying on subsections 2, 3, or 4, although he briefly considered relying on one or more of those subsections. First, he suggested that there had been some impropriety with grand jury proceedings because the grand jury purportedly met on a day when the foreperson was allegedly hospitalized. In making this suggestion, Motta was apparently unaware that the deputy foreperson could preside and that proceedings could occur in the foreperson's absence provided a quorum of sixteen of the twenty-three grand jurors was present. Upon being informed of this at the hearing on May 12, 2015, he clarified that he was not relying on any grand jury impropriety. Second, he suggested that he received newly discovered evidence on or around February 18, 2014, but subsequently withdrew any argument relating to such evidence.
For purposes of § 2255(f)(1), a judgment becomes final "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.'"
Motta filed a certiorari petition with the Supreme Court, which denied Motta's petition on February 19, 2013. In
Motta could have met that deadline by placing his § 2255 motion into the prison mail by February 19, 2014. Under the "prison mailbox rule," "a pro se prisoner's filing of a . . . habeas petition is deemed filed at the moment the prisoner delivers it to prison authorities for forwarding to the clerk of the court."
Because Motta did not timely place his § 2255 motion into the prison mail system, Motta must demonstrate that the limitation period should be equitably tolled, albeit for a very brief period.
Motta fails to show that equitable tolling applies.
The crux of Motta's argument, as explained by Motta's counsel and confirmed by Motta in statements at a hearing on May 12, 2015 (as clarified in a letter of May 26, 2015, ECF No. 1658), is that his § 2255 motion should be deemed timely filed because the printer/copier made available to inmates by prison authorities was not in working order for the entire week that included his deadline. He contends that the limitation period should be equitably tolled because this was a circumstance beyond his control that he says prevented his timely submission of his motion.
Motta concedes that, absent equitable tolling, his § 2255 motion was due on February 19, 2014, and that he missed that deadline.
In evaluating Motta's argument that the one-year limitation period should be tolled because of the broken printer/copier, the court relies on three categories of information: (1) this court's extensive opportunities to observe Motta over the years since this case was filed, (2) Motta's
With respect to the first category (i.e., the court's opportunities to observe Motta over the years), the docket sheet in this case, which reflects over 1600 entries, establishes that this has been a case requiring considerable attention by this court.
The charges made Motta and two of his many co-defendants eligible to receive the death penalty, and proceedings relating to that eligibility consumed the period immediately following the filing of the First Superseding Indictment. Eventually, the Government decided that it would not seek the death penalty. With Motta and two co-defendants facing mandatory life sentences if convicted, trial preparation began in earnest.
The court observed that Motta was highly engaged in his own defense. Motta has a bachelor's degree from the University of Hawaii at Hilo, where he served as student body president. Testimony of Ethan Motta, March 4, 2009, ECF No. 1246, PageID # 10858 ("I went to University of Hawai'i at Hilo. And that's where I graduated with a bachelor in political science.") and PageID # 10859 ("I was on the student—student body government. I was the president of the university for several years."). He demonstrated repeatedly to the court that he was intelligent and articulate.
The court first heard him make statements under oath when he pled guilty with a plea agreement on February 11, 2008.
Ultimately, that guilty plea was withdrawn when the court rejected the plea agreement in which Motta and the Government had agreed to a sentence of 27.5 years.
Subsequently, one of those co-defendants entered into a new plea agreement with the Government that included the Government's offer to move to dismiss the counts carrying a mandatory life sentence and so allowed the imposition of a sentence of 27.5 years without a substantial assistance motion. The caption on documents relating to that new plea agreement includes Motta's name, apparently because the same agreement was offered to Motta and another co-defendant, but neither accepted the offer.
Testimony and argument in the jury trial spanned eighteen days. Motta testified on March 4 and 5, 2009, giving this court further opportunities to observe him under oath. Motta claimed that he shot his victims in self-defense, and that he had not planned to shoot them.
Convicted of the charges carrying a mandatory life sentence, Motta was sentenced to life in prison. He appealed, and the Ninth Circuit affirmed his conviction and sentence. Motta sought review by the Supreme Court. On February 19, 2013, the Supreme Court denied certiorari. As noted earlier, Motta's § 2255 motion was therefore due by February 19, 2014.
Although Motta has been represented by numerous attorneys in this case, he has, for certain purposes, represented himself. His
When this case began in 2006, Motta was represented by Todd Eddins, an experienced criminal defense attorney appointed under the Criminal Justice Act ("CJA"). The court also appointed Michael Burt as learned capital counsel, terminating that appointment after the Government announced that it would not seek the death penalty. For trial, Motta discharged Eddins and retained Charles Carnesi from out of state, with Walter Rodby as retained local counsel. After he was convicted, Motta sought new CJA counsel for sentencing, and the court appointed Richard Pafundi. On appeal, Motta was represented by CJA counsel Georgia McMillen. Without involving the court, Motta obtained the services of Jeffrey T. Green, of Sidley Austin LLP, to represent him in seeking certiorari. Representing himself, Motta then filed post-appeal motions for new trial, asserting that he had newly discovered evidence. He eventually retained Myles Breiner to represent him in drafting a reply memorandum in support of his new trial motions. Motta subsequently opted to withdraw his new trial motions and to focus entirely on his
Motta filed several documents
Motta took the stand during the evidentiary hearing, giving this court its third opportunity to observe Motta under oath.
The court has also heard from Motta when he has not been under oath, as he has sometimes spoken up from counsel's table. In addition, he recently spoke passionately over the telephone during the on-the-record proceeding on March 2, 2015, that resulted in the replacement of Richard Gronna as the CJA attorney who would represent him on the timeliness issue. Thus, this court has had an unusually ample basis on which to judge what credence to give to Motta's statements.
For reasons detailed in the pages that follow, the court does not believe Motta's assertion that the broken printer/copier caused him to miss his deadline of February 19, 2014. While the court accepts that the inmates' printer/copier was indeed broken during the week in which the deadline fell, the evidence that the court does believe leads the court to find that Motta missed his deadline because he thought his § 2255 motion was due on a date later than February 19, 2014. Because Motta was mistaken as to his deadline, he would not have submitted his motion by February 19, 2014, even if the printer/copier had been in perfect working order that week.
The court precedes its detailed review of Motta's
On February 24, 2014, this court received Motta's § 2255 motion ("Original Motion").
On the same day this court received the Original Motion, this court received Motta's "Motion Seeking Leave to File 2255 Petition Pro se."
On February 27, 2014, the court received from Motta a second § 2255 motion, which the court construed as a "Supplement" to the Original Motion, rather than as a second motion. The Supplement is identical to the Original Motion, with the exception that it adds a handwritten section concerning the timeliness of the document.
The Supplement includes a copy of Motta's dated signature and his certification under penalty of perjury that the document was placed in the prison mail system on February 21, 2014.
The Supplement itself suggests that, in placing the Supplement into the prison mailing system on February 21, 2014, Motta believed that his one-year limitation period had not yet expired. Thus, the Supplement states that the only way Motta's § 2255 motion would be untimely was "IF THE FACILITY REMAINS ON LOCKDOWN STATUS AND MOVANT IS UNABLE TO HAND DELIVER . . . [THE MOTION] TO THE PRISON MAILROOM TO HAVE IT SENT OUT VIA CERTIFIED MAIL AT 7am VIRGINIA TIME."
On March 10, 2014, the Government filed its response to Motta's Motion Seeking Leave to File 2255 Petition Pro Se. That response noted that Motta's § 2255 motion was untimely, having been filed more than a year after the certiorari petition was denied. The Government noted that Motta was untimely even under the "prison mailbox rule" set forth in
As directed by the court, Motta addressed the Government's contention that his § 2255 petition was untimely in a document filed on May 19, 2014.
In his filing of May 19, 2014, Motta said that the only notice he had received as to when certiorari had been denied was an e-mail from the Sidley Austin law firm dated February 20 or 21, 2013.
According to the May 19, 2014, filing, Motta went back to the library and was able to get a blank § 2255 form from another inmate at approximately 9:30 a.m. on Wednesday, February 19, 2014.
In his May 19, 2014, filing, Motta said that he filed his Supplement because his prison facility was placed on lockdown on February 20, 2014.
Motta very clearly states in his filing of May 19, 2014, that he had retained Myles Breiner to represent him only with respect to new trial motions under Rule 33 of the Federal Rules of Evidence, not with respect to a § 2255 motion.
On May 27, 2014, the court issued a detailed Order To Show Cause, asking Motta to address why his § 2255 motion should not be dismissed as untimely.
On July 14, 2014, Motta responded to the Order To Show Cause.
Motta says he then began to search for a blank § 2255 form and found that the prison law library was out of those forms.
Motta describes returning to the prison library the morning of February 19, 2014, feeling "helpless and limited knowing his 2255 petition needed to be sent out that very day."
This statement of knowledge of the deadline of February 19, 2014, cannot be squared with (1) Motta's statement in his Supplement that he believed that the only way his § 2255 motion would be untimely would be if the prison facility remained on lockdown beyond Friday, February 21, 2014, preventing him from handing his motion to a guard,
In his response of July 14, 2014, Motta reported that, on February 19, 2014, he got a blank § 2255 form from a prisoner named "Ratcliffe."
Apparently conscious that some of his earlier statements were inconsistent with any claim that he tried to send out his § 2255 motion by February 19, 2014, Motta says in his filing of July 14, 2014, that he had previously made a mistake in stating that he handed the § 2255 motion to a guard on the night of Wednesday, February 19, 2014. Correcting himself, he says that, because he was unable to make any copies of his § 2255 motion, he "was unable to give his one and only copy to the evening officer before lockdown on [W]ednesday night in fear that his only copy would be lost or misplaced in the mail."
This alleged fear is inconsistent with the record in this case. On other occasions, Motta has sent the court his only copy of documents and asked the court to make him copies and send them to him.
Finally, in his filing of July 14, 2014, Motta says that he approached the kitchen supervisor on February 20, 2014, to get copies.
This court held a hearing on the timeliness issue. Motta was flown at the expense of the Judiciary from Virginia to Honolulu to be at the hearing.
There is no dispute that the printer/copier for inmates to use was broken during the week of February 16, 2014. David Ratcliff, another inmate at Motta's facility who volunteered in the prison library, testified at the hearing held on April 10, 2015, that the machine was indeed broken. The out-of-order status was also confirmed by a prison memorandum indicating that the machine was not working during the week of February 16 to 23, 2014.
Motta testified on April 10, 2015, that he had drafted his § 2255 motion on an electronic device called a "Neo." This was apparently a kind of portable word processor that an inmate could ask to take to his cell to use. There were a number of Neo devices that inmates could use. Ratcliff explained that a Neo had only a very small display screen, not large enough to show even a multi-sentence paragraph. It did not allow internet research. The printer/copier made available for inmate use could print documents drafted on a Neo, but, for the most part, the prison's other copy machines were not set up as printers for any Neo.
Cole testified that, when the inmates' printer/copier was not broken, inmates had unrestricted access to the machine and could print out documents as long as they had money to cover the costs of printing. Cole testified that, when that machine was broken, inmates could ask to use the staff machine, but had to have a compelling reason to do so. Ratcliff testified that the inmates' printer/copier was often broken, as prisoners removed parts to use to make other things. Cole agreed that the printer/copier was so often out of service that inmates knew that they might not be able to use it.
Cole said that his staff was usually generous in providing inmates with documents using the staff machine. Cole also noted that inmates had access to copy machines in their units. Cole's recollection was that the prison law library was, in fact, open on Presidents' Day, Monday, February 17, 2014.
Ratcliff testified at the hearing on April 10, 2015, that the prison law library had had blank § 2255 forms available in January 2014 and before. He testified that Motta did not ask for a blank § 2255 form until February 19, 2014. Ratcliff recalled that Motta knew in January 2014 that his § 2255 motion was due the next month.
Both Ratcliff and Cole testified about prison lockdowns. Radcliff reported that lockdowns were frequent, and that inmates knew that, when the prison was on lockdown, "nothing happens."
During the evidentiary hearing on April 10, 2015, Motta testified, consistent with at least a portion of his
Motta also testified that he incorporated references to those thousands of documents into his § 2255 motion on Tuesday, February 18, 2014. Consistent with his
According to Motta's testimony, he received, on Wednesday, February 19, 2014, an e-mail from a friend regarding the grand jury that had indicted him. Motta says he wanted to add that information to his § 2255 motion. Although he said that his § 2255 motion was completed on February 19, 2014, he also testified that he filled out part of the § 2255 form in his cell on February 20, 2014. Eventually, Motta conceded on cross-examination that, as of February 19, 2014, he wanted to add a few more things to his § 2255 motion.
Motta admitted on cross-examination that he did not know exactly when his § 2255 motion was due, contradicting his earlier statement that he knew it was due on February 19, 2014. Motta also admitted that, between February 20 and February 22, 2013, he was notified by his attorneys that his certiorari petition had been denied "a few days ago." Motta thus should have known that his motion might be due "a few days" before the period beginning on February 20, 2014.
The only way to make sense of what is in the record is to view Motta as having wrongly assumed that his deadline was February 22, 2014. Motta's admissions on cross-examination are consistent with the date and time stamp on his transmittal letter for the Original Motion, "02/20/2014 11:06:27 AM,"
While Motta submitted affidavits of other prisoners, none of them establishes that Motta realized that his § 2255 motion was due by February 19, 2014. At most, they show that Motta was concerned about an upcoming deadline around that date.
For example, the Sworn Affidavit & Declaration of Truth of Michael Green only states that, on or about February 17, 2014, Motta told him that his § 2255 motion was due in several days. This does not indicate that Motta knew his § 2255 motion was due precisely by February 19, 2014.
The Sworn Affidavit & Declaration of Truth of Donald Thomas is similarly unpersuasive. Although Thomas says that there is no doubt in his mind that Motta would have timely filed his § 2255 motion had the printer/copier not been broken, he does not directly say that Motta knew his deadline was February 19, 2014.
The Sworn Affidavit & Declaration of Truth of Clark Brooks is also unhelpful. At most, Clark states that, on February 19, 2014, Motta was looking for a blank § 2255 form and explained the urgency of the situation. Without more, the court cannot conclude from Brooks's declaration that Motta believed his motion was due by February 19, 2014.
Motta testified that he was able to make copies of his Original Motion on February 20, 2014. Motta testified that he gave the Original Motion to officer "Fannon" about midnight on February 20, 2014.
Exhibit 3, a "draft" of an e-mail dated February 18, 2014, at 9:31 p.m., from Motta to an attorney in Myles Breiner's office, referred to Motta's § 2255 motion as already completed:
In cross-examination testimony given on April 10, 2015, Motta claimed that, when he drafted this unsent e-mail on February 18, 2014, his motion was already done and he was ready to send it out. This e-mail, which was never sent, suggests that Motta thought his motion was not due for several more days, as the e-mail refers to a motion that Motta intended to send to his attorney. Notably, the draft e-mail does not attach the § 2255 motion. In is unclear to the court whether such an attachment of a Neo document was possible. In any event, Motta in response to questions from the court on April 10, 2015, said that, at the time he drafted the e-mail, he planned to mail his motion to his attorney. In fact, Motta testified he hoped to get it out to his attorney in the mail on February 19, 2014!
Any motion mailed to counsel would not have been considered filed as of the date it was placed in the prison system, as the prison mailbox rule only applies to documents mailed to the court.
The court ends this section by noting two things that were more important to the court's credibility determination than to any substantive explanation.
First, at the hearing on April 10, 2015, Motta's counsel attempted to introduce a document with a redaction where a name had been. This court asked Motta whose name had been redacted. Motta hesitated before reluctantly saying that it was his sister's name. When the court pointed out that the sentence containing the redaction used the pronoun "he" to refer to the person whose name had been redacted, Motta was stymied. The court finds Motta's identification of his sister not believable. While the identification itself does not establish or contradict timeliness, it left the court with the clear impression that Motta was making things up.
Second, Motta testified that he knew his deadline was February 19, 2014, because he had been informed of that by a friend. This court asked for the friend's identity. Motta was clearly caught off guard and appeared not to want to identify the friend. After a noticeable pause, he named Michael Ornellas. Motta had not earlier named Ornellas as a witness, but, after he reluctantly identified him, did call him as a witness.
Ornellas testified at a continued hearing session on April 24, 2015. Ornellas testified that, in November 2013, he told Motta that his deadline for filing the § 2255 motion was February 19, 2014. Ornellas said he had determined this through online research. Ornellas also recalled having telephoned the prison on or near Valentine's Day, February 14, 2014, to reiterate to Motta that his certiorari petition had been denied on February 19, 2013. Ornellas claimed to have been having conversations with Motta pretty much every other day. The time frame of these conversations is unclear. According to Ornellas, around Valentine's Day, he also faxed Motta a screen shot of a page from Leagle.com showing that certiorari had been denied by the Supreme Court on February 19, 2013. Ornellas said he remembered the approximate date he talked with Motta as having been around Valentine's Day 2014 because he recalled having been ill with pneumonia around that time. Despite being ill, Ornellas recalls having gone to work the day he says he faxed the document to Motta. The belated identification of Ornellas as a witness and his testimony were extremely problematic in this court's view, and the court did not believe Ornellas. In particular, it makes no sense to this court that, if Motta knew his deadline was February 19, 2014, Motta failed to put what he had in the mail that day.
Motta is an intelligent, educated man. He has demonstrated over the course of this lengthy case that he shades the truth if he thinks that is in his best interest.
After the appeals process was completed, Motta knew that his § 2255 motion was due on some date in February 2014. At the time he filed his motion, Motta appears to have mistakenly and negligently believed his motion was due by February 22, 2014. This is clear from his Supplement, which noted that the only way his motion would be untimely would be if the prison remained on lockdown after February 20, 2014. Similarly, his Motion Seeking Leave specifically referred to his deadline as February 22, 2014.
There is no dispute that Motta's § 2255 motion was due no later than February 19, 2014. When this date was impressed on Motta by this court and the Government, Motta for the first time claimed that he had given the Original Motion to a prison guard at night on February 19, 2014, and described having been panicked about meeting the deadline of February 19, 2014. Only after being confronted with the computer-generated date-stamp and time-stamp of February 20, 2014, shown in attachments to the Original Motion and Supplement, did Motta claim that he was mistaken about having handed the Original Motion to the guard on February 19, 2014, and that he had actually handed it to the guard on February 20, 2014.
Motta was well aware of the need to meet his deadline. He is too intelligent to have risked losing any chance to pursue his remedies under § 2255 just to add "icing" on the cake by taking the time on the night of his deadline to include references in his motion to 3000 newly received documents. The only thing that makes sense to this court is that Motta chose to take the time to make those additions to his Original Motion because he thought his deadline was February 22, 2014. Otherwise, he would surely have sent out what he had managed to prepare in time to make the February 19 mail. He was understandably dismayed and anxious, even panicked or frenzied, upon finding the printer/copier broken on February 18, 2014, but he still had something as of February 19, 2014, that he could have sent out by that deadline.
In fact, Motta's counsel noted in arguing the timeliness issue during a continued hearing on May 12, 2015, that Motta's § 2255 motion was done on February 19, 2014. Motta expressly agreed out loud with his counsel's factual assertions. He chose working on improving his § 2255 motion over putting anything in the mail on February 19, 2014. This choice is understandable only if Motta thought he had just a small amount of time more, not if he was panicked because the printer/copier was broken.
The court does not believe Motta's claim that he did not mail his only copy of his § 2255 motion on February 19, 2014, out of fear that it would be lost or misplaced. Motta had mailed documents to the court in the past without retaining copies. Similarly, the court does not believe that Michael Ornellas told Motta, around Valentine's Day 2014, that his deadline was February 19, 2014. The multitude of inconsistencies in Motta's explanations makes much of what he claims incredible. In rejecting Motta's explanations as unbelievable, the court is relying not only on the substantive problems with the explanations, but also on Motta's demeanor while testifying. The court's observations of Motta cause this court to reject the possibility that Motta would have missed a deadline if Ornellas told him about it. When caught off guard during the evidentiary hearing, Motta appeared to be casting about in his mind for a way to account for anomalies. In short, in terms of both substance and demeanor, Motta displayed a lack of truthfulness.
In finding Motta incredible, the court does not want to be misunderstood as acting on the basis of any personal animus against him. Instead, this credibility determination is the culmination of this court's observations of Motta in this very case. There is no impropriety in a judge's reliance on such observations.
There is no dispute that Motta's § 2255 motion was due on February 19, 2014. The credible evidence before this court indicates that, at the very earliest, Motta handed his § 2255 motion to a prison guard at night on February 20, 2014. As harsh as it is to deny Motta a review of the merits of his § 2255 motion based on a short delay, this court is bound by the one-year limitation period. The court sees no reason to equitably toll the running of that limitation period.
In
First, Motta did not pursue his rights diligently. He admitted on April 10, 2015, that, at some point between February 20 and February 22, 2013, he was notified that his petition for certiorari to the United States Supreme Court had been denied "a few days ago." If "a few days ago" referred to two to three days, Motta knew or had facts from which to conclude that his petition for certiorari had been denied possibly on February 17, 2014. Motta also knew he had a one-year limitation period. Motta knew that his attorney, Myles Breiner, was only representing him with respect to motions under Rule 33 of the Federal Rules of Criminal Procedure and not with respect to the § 2255 motion. Thus, Motta should have worked diligently on his § 2255 motion and completed it in time to meet a deadline that he knew might have been before February 20, 2014. At the very least, he should have either worked diligently to determine the exact date his certiorari petition was denied or mailed his petition earlier in February 2014 to ensure that it was timely. In fact, Motta called as a witness Ornellas, who testified that he gave Motta the correct deadline in November 2013 and then again around Valentine's Day in 2014. Motta's failure to either clarify the deadline or, if he had the deadline from Ornellas, to meet it shows a lack of diligence.
Motta also knew that the printer/copier in the prison law library was often broken, and that his prison was often on lockdown, which meant "nothing happens." Yet, by his own account, Motta did not even attempt to print out a version of the § 2255 motion until February 18, 2014. Motta had a motion that could have been mailed by February 19, 2014, but continued to add things to it on February 20, 2014. Under these circumstances, it cannot be said that Motta proceeded diligently to try to meet his deadline.
Motta has also failed to demonstrate that extraordinary circumstances prevented him from timely filing his § 2255 motion on or before February 19, 2014. At best, Motta says that the printer/copier was down and that he had trouble finding a blank § 2255 form. Testimony establishes that the machine was often broken and that prisoners knew that. The blank § 2255 form would have been available to Motta earlier but was unavailable when Motta sought it at the last minute. The critical fact is that, as stated in his Supplement, Motta believed that the limitation period did not run out until February 22, 2014.
As harsh as this result is, a mistake about a deadline caused by Motta's own lack of diligence cannot be said to be an extraordinary circumstance. Motta made a mistake about when his deadline was. It was not the breakdown of the printer/copier that prevented Motta from timely mailing his § 2255 motion. It was his belief that he had a few more days.
This court has been mindful from the start of its consideration of the timeliness issue of two things. First, Motta missed his deadline by only two days. Second, Motta's § 2255 motions was likely his last avenue for challenging a life sentence. These two things caused the court to begin its inquiry committed to allowing equitable tolling if any facts justified that. But given the court's review of the facts and its inability to accept many of Motta's own assertions as true, this court cannot find that equitable tolling applies.
The court declines to grant Motta a certificate of appealability. An appeal may not be taken to the court of appeals from a final order in a § 2255 proceeding "[u]nless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1)(B). The court is to issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a district court denies a § 2255 petition on the merits, a petitioner, to satisfy the requirements of section 2253(c)(2), "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."
This court has determined that Motta is not credible in his assertions. Because no reasonable jurist would rely on incredible assertions, and because the credible facts indicate that Motta made a mistake about his deadline and has not shown that extraordinary circumstances warranted the tolling of the limitation period, this court does not think any reasonable jurist would find debatable this court's determination that Motta's motion is barred as untimely. Given this determination, the court does not examine whether Motta's petition states a valid claim of the denial of a constitutional right.
Because Motta did not timely file his § 2255 motion and because he has failed to demonstrate a basis for the equitable tolling of the limitation period, the court dismisses the § 2255 motion as untimely and declines to issue a certificate of appealability. In so ruling, the court denies Motta's motion of May 19, 2014, seeking leave to extend the § 2255 deadline. ECF No. 1563. Any other pending matter is similarly terminated.
The Clerk of Court is directed to enter judgment against Motta and to close this § 2255 action.
IT IS SO ORDERED.
