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United States v. Ramirez

United States District Court, D. Colorado

June 28, 2018

UNITED STATES OF AMERICA,
v.
2. ADAN RAMIREZ, Defendant/Movant. Civil Action No. 18-cv-00759-PAB

          ORDER DENYING § 2255 MOTION

          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. On April 17, 2018, the Court issued an Order, Docket No. 228, directing Mr. Ramirez to show cause within 30 days why his § 2255 motion should not be denied as untimely and because many of his post-conviction claims are barred by a collateral-attack waiver in his plea agreement. After receiving an extension of time, Movant filed a Response to the Order to Show Cause on June 14, 2018 and June 18, 2018. Docket Nos. 237 & 239. He has also filed a Motion to Appoint Counsel and Extension of Time, Docket No. 238, and a Motion to Transfer the § 2255 Motion to Appellate Court as Second or Successive. Docket No. 240.

         The Court construes Mr. Ramirez's filings 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, the § 2255 motion, as well as his motion for appointment of counsel and his motion to transfer the § 2255 motion to the appellate court, will 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. ...


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