United States District Court, D. Colorado
ORDER DENYING 28 U.S.C. § 2255 MOTION
A. BRIMMER UNITED STATES DISTRICT JUDGE
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).
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.
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.
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.
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.
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.
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
Court does not reach the merits of Mr. Tunget's claims
because his § 2255 motion must be dismissed as untimely.
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
(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 ...