United States v. Rosales-Nieto

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

          CHRISTINE M. ARGU LLO UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the pro se “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (ECF No. 37) and the “Motion for Appointment of Counsel” (ECF No. 38) filed December 6, 2018, by Defendant Usmaro Rosales-Nieto. The Court must construe the motions liberally because Defendant is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. Hall, 935 F.2d at 1110. For the reasons stated below, the Court will deny the motions.

         Defendant agreed to plead guilty to one count of illegal reentry of a previously deported alien following an aggravated felony conviction. He was sentenced to forty-six months in the custody of the Bureau of Prisons, of which thirty months were ordered to be served concurrently with Defendant's undischarged Colorado state sentence. The Judgment in a Criminal Case (ECF No. 35) was entered on April 4, 2017.

         Defendant asserts two claims in the § 2255 motion. Defendant first claims the Court should have ordered his federal sentence to commence on September 1, 2016, the same date his undischarged state sentence commenced so that the sentences would be fully concurrent. Defendant also alleges within claim one that he completed his state sentence in August 2018 and, upon his transfer to the custody of the Federal Bureau of Prisons (“BOP”), he has learned the BOP is not calculating his federal sentence correctly. Defendant contends in his second claim that counsel was ineffective by failing to seek and obtain a federal sentence that commenced on September 1, 2016.

         The Court notes initially that any claim Defendant seeks to raise regarding the computation of his sentence by the BOP may not be raised in a motion pursuant to 28 U.S.C. § 2255. Defendant's claim challenging the computation of his sentence properly is raised in an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the district in which Defendant is confined.

         Defendant's claims that the Court should have imposed a sentence that commences on September 1, 2016, and that counsel was ineffective by failing to seek and obtain a sentence that commenced on September 1, 2016, are untimely. Pursuant to 28 U.S.C. § 2255(f), a one-year limitation period applies to motions to vacate, set aside, or correct a federal sentence. That statute provides as follows:

A 1-year period of limitation shall apply to a motion under this section. The limitation 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 making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

         Defendant recognizes that the § 2255 motion was filed more than one year after the judgment of conviction became final but he argues the motion is timely pursuant to § 2255(f)(4) because he only recently discovered the BOP is not computing his sentence correctly. The Court is not persuaded because the BOP's computation of Defendant's sentence is not relevant to his claims that the Court should have imposed a sentence that commences on September 1, 2016, and that counsel was ineffective by failing to seek and obtain a sentence that commenced on September 1, 2016. The factual basis for each of those claims existed at the time Defendant was sentenced. In other words, Defendant knew when he was sentenced that the sentencing order did not state the sentence would commence on September 1, 2016. As a result, Defendant's § 2255 motion is time-barred in the absence of some reason to toll the one-year limitation period.

         The one-year limitation period in 28 U.S.C. § 2255(f) is not jurisdictional and is subject to equitable tolling. See United States v. Gabaldon, 522 F.3d 1121, 1124 (10^thCir. 2008). Equitable tolling is appropriate “‘when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances ...