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United States v. Salazar

United States District Court, D. Colorado

March 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY MICHAEL SALAZAR, Defendant/Movant.

          ORDER DENYING § 2255 MOTION

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         Movant 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. 42].[1] 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 untimely.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On 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 direct appeal.

         Mr. 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).[2] Id. at 24. In the alternative, Mr. Salazar argues that the conditions of his supervised release must be modified. Id. at 10-23.

         On 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 No. 46.

         II. ANALYSIS

         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.

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 ...

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