United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. BRIMMER UNITED STATES DISTRICT JUDGE
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.
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
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
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 §
(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.