United States District Court, D. Colorado
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 (10th 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
(10thCir. 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 ...