United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
Anthony Michael Salazar has filed pro se a Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§ 2255 (§ 2255 Motion) [Docket No.
The Court construes the § 2255 Motion liberally because
Mr. Salazar 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 does not act as a pro se litigant's
advocate. See Hall, 935 F.2d at 1110. For the
reasons stated below, the § 2255 Motion is dismissed as
BACKGROUND AND PROCEDURAL HISTORY
March 16, 2015, Mr. Salazar was placed on supervision by the
United States District Court for the District of Utah. Docket
No. 22. Following a conviction for Failure to Register as a
Sex Offender, in violation of 18 U.S.C. § 2250(a), he
was sentenced to a 12-month term of imprisonment followed by
five years of supervised release. Docket No. 1-2. Supervision
commenced in the District of Utah on July 22, 2015 and was
transferred to the District of Colorado on January 15, 2016.
Docket No. 1. On September 20, 2016, a United States
Probation Officer filed a Superseding Petition Due to
Violations of Supervision (“Petition”). Docket
No. 22. The Petition alleged five violations, including,
inter alia, Violation of Law, a Grade B violation of
supervised release under United States Sentencing Guidelines
Section 7, “Certain Activities Relating to Material
Constituting or Containing Child Pornography in violation of
18 U.S.C § 2252A.” Id. at 3. Mr. Salazar
admitted to the violation and the Government withdrew the
remaining four violations. See Docket Nos. 38, 39
and 40. On March 6, 2017, Mr. Salazar was sentenced to a
60-month term of imprisonment to be followed by a five-year
term of supervised release. Docket No. 40. He did not file a
Salazar filed a § 2255 Motion on January 15, 2019.
Docket No. 42. In the Motion, he asks the Court to vacate the
period of supervised release on the basis that the Court had
no jurisdiction to impose it. Id. at 3.
Specifically, Mr. Salazar asserts that “[t]he
revocation of [his] supervised release was a continuation of
the original criminal action, not a separate
proceeding” and, therefore, “the court could not
impose another five years supervised release after imposing a
five year sentence after revoking his supervised
release.” Id. at 9. He also challenges the
constitutionality of the five-year sentence under United
States v. Haymond, 869 F.3d 1153 (10th Cir. 2017),
cert. granted, 139 S.Ct. 398 (Oct. 26,
2018). Id. at 24. In the alternative,
Mr. Salazar argues that the conditions of his supervised
release must be modified. Id. at 10-23.
January 29, 2019, the Court issued an order directing Mr.
Salazar to show cause in writing within thirty days why the
§ 2255 Motion should not be denied as untimely or as
procedurally barred. Docket No. 45. Mr. Salazar filed a
response to the show cause order on February 25, 2019. Docket
to 28 U.S.C. § 2255(f), a one-year limitation period
applies to motions to vacate, set aside, or correct a federal
The limitation 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 making a motion by such
(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