United States v. Tunget

          ORDER DENYING 28 U.S.C. § 2255 MOTION

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Docket No. 70] filed by David W. Tunget. Because Mr. Tunget is not represented by counsel, the Court will construe his motion liberally but will not serve as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         I. BACKGROUND

         On September 1, 2010, Mr. Tunget was charged by information with knowingly possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) & (b)(2). Docket No. 1. On September 9, 2010, the Court appointed Colleen Scissors as counsel for Mr. Tunget, Docket No. 6, and Mr. Tunget filed a waiver of indictment. Docket No. 8. On September 16, 2010, Mr. Tunget filed a notice of disposition. Docket No. 9. On November 3, 2010, the Court held a change of plea hearing. Docket No. 14. The plea agreement was made pursuant to Fed. R. Crim. P. 11(c)(1)(C). Docket No. 15 at 1. The parties stipulated to a sentence of 10 years' imprisonment and estimated that Mr. Tunget had a total offense level of 30, a criminal history category of II, and a resulting guidelines range of 108 to 135 months imprisonment. Docket No. 15 at 1-3, 9-10. Mr. Tunget pled guilty to Count One of the Information. Docket No. 14 at 2.

         At the sentencing hearing on February 4, 2011, the Court determined that the applicable guidelines range was substantially higher than what the parties had calculated in their plea agreement. Docket No. 31. The Court found that Mr. Tunget was subject to a two-level enhancement for distribution of pornography under U.S.S.G. § 2G2.2(b)(3)(F) and a five-level enhancement under § 2G2.2(b)(5) based on his prior conviction for sexual abuse of a child. The application of these enhancements resulted in a total offense level of 35 and a guideline range of 188 to 235 months imprisonment. After denying Mr. Tunget's request for a variant sentence, id. at 2, the Court rejected the parties' plea agreement and expressed its intent to sentence Mr. Tunget to 188 months imprisonment followed by 20 years supervised release. The Court continued the sentencing hearing for the parties to consider whether to set the matter for trial. Id.

         At the sentencing hearing on March 11, 2011, the Court asked counsel for Mr. Tunget whether Mr. Tunget wished to accept the sentence that the Court had indicated it would impose at the last hearing or whether he wished to set the matter for trial. Docket No. 37 at 1. Ms. Scissors indicated that Mr. Tunget would proceed with sentencing. Id. Accordingly, the Court sentenced him to 188 months imprisonment, followed by 20 years supervised release. Id. at 2. Mr. Tunget's judgment of conviction was entered on March 16, 2011. Docket No. 39.

         On August 31, 2015, Mr. Tunget filed a Motion to Reopen pursuant to Federal Rule of Civil Procedure 60(b)(6) asserting six grounds for relief: (1) prosecutorial misconduct/malicious prosecution; (2) ineffective assistance of counsel; (3) errors and omissions in the presentence investigation report; (4) actual innocence of the distribution charge; (5) new evidence; and (6) the Adam Walsh Act. Docket No. 42. The Court dismissed the motion on September 18, 2015 for lack of jurisdiction. Docket No. 43 at 5. In doing so, the Court declined to recharacterize the motion as a motion to vacate under 28 U.S.C. § 2255, finding that such a motion would be time-barred under § 2255(f)'s one-year statute of limitations. Docket No. 43 at 3-5.

         On March 31, 2017, Mr. Tunget filed a Motion for Tolling of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 in which he detailed his repeated, unsuccessful efforts to obtain his case file from Ms. Scissors. Docket No. 59. Because Mr. Tunget had not yet filed a § 2255 motion, the Court dismissed his motion for tolling as premature. Docket No. 68.

         On August 24, 2017, Mr. Tunget filed his § 2255 motion to vacate and a renewed motion for tolling. Docket Nos. 70, 71. Mr. Tunget asserts three grounds for relief: ineffective assistance of counsel, prosecutorial misconduct, and sentencing miscalculation. He also contends that he is entitled to equitable tolling of the one-year statute of limitations under § 2255(f), based on his withdrawal from Xanax and his attorney's failure to turn over his case file.

         II. ANALYSIS^[1]

         The Court does not reach the merits of Mr. Tunget's claims because his § 2255 motion must be dismissed as untimely.

         Pursuant to 28 U.S.C. § 2255(f), a one-year statute of limitations applies to motions to vacate, set aside, or correct a federal sentence. The statute provides that the limitations period shall run from the latest of -

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from ...