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United States v. Ramirez

United States District Court, D. Colorado

April 17, 2018

UNITED STATES OF AMERICA,
v.
2. ADAN RAMIREZ, Defendant/Movant.

          ORDER TO SHOW CAUSE

          PHILIP A. BRIMMER, United States District Judge

         Movant Adan Ramirez has filed, pro se, a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §2255 (“§ 2255 motion”) [Docket No. 226] challenging the validity of his criminal convictions and sentence. The Court construes Movant's filing liberally because he is not represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court will not act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons discussed below, Movant will be ordered to show cause why his § 2255 motion should not be denied.

         I. PROCEDURAL HISTORY

         Movant was convicted, pursuant to his guilty plea, of one count of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (Count 1); one count of possession with intent to distribute and distribution of 5 grams or more of methamphetamine, or aiding and abetting the same, in violation of 18 U.S.C. §§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2 (Count 2); two counts of possession with intent to distribute and distribution of 50 grams or more of methamphetamine (actual), or aiding and abetting the same, in violation of 18 U.S.C. §§ 841(a)(1), (b)(1)(B) (Counts 3 & 4), and one count of possession and carrying of a firearm in furtherance of a drug trafficking crime, or aiding and abetting the same, in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2 (Count 5). Docket No. 205. On March 3, 2016, the Court sentenced Movant to an aggregate 144-month term of imprisonment (84 months for each of counts 1 through 4, to be served concurrently, and 60 months for count 5, to be served consecutively). Id. Judgment was entered the following day. Id. An Amended Judgment was entered on March 9, 2016. Docket No. 207. Movant did not file a direct appeal.

         On April 2, 2018, Movant filed his § 2255 motion asserting the following five claims:

(1) The Supreme Court's decision in Dean v. United States (No. 15-9260) ( S.Ct. April 3, 2017), permits this Court to resentence Petitioner pursuant to §2255(f)(3);
(2) § 2255(a) Misinformation; 2255(a) allows this Court to grant Petitioner relief;
(3) Ineffective Assistance of Counsel;
(4) Due Process;
(5) The Rule of Lenity. Docket No. 226.

         II. ANALYSIS

         A. Timeliness

         Pursuant to 28 U.S.C. § 2255(f), a one-year limitation period applies to motions to vacate, set ...


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