Free Order on Motion to Vacate (2255) - District Court of Colorado - Colorado

Case 1:01-cr-00230-EWN

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Edward W. Nottingham

Civil Action No. 08-cv-01458-EWN (Criminal Action No. 01-cr-00230-EWN-1)

UNITED STATES OF AMERICA, v. PHILLIP GURULE, Movant.

ORDER DENYING 28 U.S.C. § 2255 MOTION

Mr. Phillip Gurule has filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. I will interpret the Motion liberally because Mr. Gurule is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I will not act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, I will deny the Motion as barred by the one-year limitation period in § 2255(f). Mr. Gurule pled guilty to one count of a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g) and was sentenced to a total of seventy-seven months in prison and three years of supervised release. He did not file a direct appeal, nor has he filed a previous § 2255 motion. In the Motion, Mr. Gurule claims that he was denied effective assistance of counsel because his trial attorney mislead him about the terms of his plea agreement, including when his federal sentence would commence.

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Under 28 U.S.C. § 2255, 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 exercise of due diligence. 28 U.S.C. § 2255(f). Mr. Gurule's judgment of conviction was entered on the docket on March 26, 2002. Because Mr. Gurule did not file a direct appeal his conviction was final on April 9, 2002, ten days after the judgment was entered, excluding the intermediate Saturdays and Sundays. See United States v. Burch, 202 F.3d 1274 (10th Cir. 2000); Fed. R. App. P. 4(b)(1) and 26(a). Mr. Gurule did not file the instant Motion until July 11, 2008, over six years after his conviction and sentence became final. Mr. Gurule does not allege that he was prevented by unconstitutional governmental action from filing the Motion sooner or that the facts supporting his claims could not have been discovered at the time of his trial and sentencing. The facts 2

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supporting the constitutionality of Mr. Gurule's ineffective assistance of counsel and involuntary and unknowing plea claims could have been discovered through the exercise of due diligence at the time of his conviction or any time thereafter. Mr. Gurule also is not asserting any rights newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. As a result, I find that the one-year limitation period in this action began to run on April 10, 2002, the day after Mr. Gurule's conviction became final. Since Mr. Gurule did not file a § 2255 Motion until July 11, 2008, the Motion is time-barred under § 2255(f). The one-year limitation period in § 2255 is not jurisdictional and is subject to equitable tolling "when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control." See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).1 Mr. Gurule bears the burden of demonstrating that equitable tolling is appropriate in this action. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Yang v. Archuleta, 525 F.3d 925 (10th Cir. 2008).2 Mr. Gurule fails to demonstrate either extraordinary circumstances or due diligence in pursuing his claims. He sets forth no argument to justify his failure to file

Although Marsh involved equitable tolling under 28 U.S.C. § 2244(d) in a 28 U.S.C. § 2254 action, the Tenth Circuit recently, in an unpublished opinion, relied on Marsh to apply equitable tolling to 28 U.S.C.§ 2255(f) in a § 2255 motion. See U.S. v. Spencer, 2008 WL 2148989, No. 08-4008 (10th Cir. (Utah) May 22, 2008). Pace and Yang involved equitable tolling under § 2244(d). The Tenth Circuit relied on Yang in U.S. v. Garcia-Rodriguez, 2008 WL 1868019, No. 07-8077 (10th Cir. (Wyo.) April 28, 2008), an unpublished opinion, for finding that the movant in a § 2255 motion bears the burden to show specific facts to support a claim of extraordinary circumstances and due diligence.
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the instant action in a timely manner. In the Motion, Mr. Gurule simply states that he believed by taking the plea his federal sentence would begin immediately, and not until December 2007 was he aware that his federal sentence runs consecutive to his state sentence. Mr. Gurule was sentenced over six years ago. He has been incarcerated at the Colorado Department of Corrections (DOC) since August 2002 when he pled guilty to a state crime and was sentenced to nine years of incarceration at the DOC. It is inconceivable that Mr. Gurule acted with due diligence in pursuing his ineffective assistance of counsel claim and his involuntary and unknowing plea claim. Mr. Gurule states in his supporting Memorandum that at the time he was sentenced in his state criminal proceeding, in 2002, the sentence was ordered to be served consecutively with his federal sentence, and he was not returned to federal custody. (Mem. at 2.) He also asserts that when he was returned to state custody after his federal sentencing he had two federal detainers placed against him. (Mem. at 2.) It is clear that Mr. Gurule had sufficient information, from 2002 forward, to be on notice that his sentences were not concurrent. I, therefore, find that equitable tolling is not appropriate in this action and that on the face of the Motion it is time-barred under 28 U.S.C. § 2255(f). See Kilgore v. Estep, 519 F.3d 1084, 1089 (10th Cir. 2008); RubioDiaz v. Milyard, No. 07-1355, 2008 WL 695894 (10th Cir. Mar. 14, 2008) (unpublished op.). Accordingly, it is

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ORDERED that the 28 U.S.C. § 2255 Motion, filed July 11, 2008, is denied and the instant civil action is dismissed. DATED at Denver, Colorado, this 22nd day of July, 2008. BY THE COURT:

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM Chief United States District Judge

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