Opinion
No. CV 12-0901 JEC/LFG No. CR 05-1375 JEC No. CR 06-1900 JEC
01-25-2013
UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM DAVIAU, Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court, sua sponte under rules 4(b), 11(a) of the Rules Governing Section 2255 Cases, on Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (CV Doc. 1; CR 05-1375 JC Doc. 102) filed on August 22, 2012. On July 2, 2008, the Court entered judgment (CR 05-1375 JC, Doc. 85) on Defendant's conviction and sentence. Defendant did not appeal the conviction or sentence. On June 5, 2009, he filed a first motion under 28 U.S.C. § 2255, which the Court dismissed with prejudice on December 3, 2009 (CR 05-1375 JC Doc. 99). More than two and one-half years later, Defendant filed this second § 2255 motion.
Defendant's central assertion is that a recent Fourth Circuit decision interpreting Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), allows a collateral attack on his sentence. Specifically, Defendant argues that the decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), "forbids us from considering hypothetical aggravating factors when calculating [Defendant]'s maximum punishment." Simmons, 649 F.3d at 244. Implicit in Defendant's motion are the dual contentions that Carachuri-Rosendo retroactively applies to his sentence and that the Simmons decision started a new one-year limitation period under § 2255(f)(3). Neither proposition is correct.
First, as the Court of Appeals for the Tenth Circuit noted in deciding whether a similar motion was a second or successive § 2255 motion, "[T]o support his position, [Defendant] relied on Carachuri-Rosendo v. Holder, --- U.S. ---, 130 S. Ct. 2577, 177 L. Ed. 2d 68 (2010), and United States v. Rodriquez, 553 U.S. 377, 128 S. Ct. 1783, 170 L. Ed. 2d 719 (2008), which he claimed represented a new change in the governing law. The district court, however, construed the filing as an unauthorized second or successive § 2255 motion and denied it rather than transfer it to this court in the interest of justice." United States v. Baker, 484 F. App'x 258, 259 (10th Cir. 2012) (citing 28 U.S.C. § 2255(h)). The Court of Appeals dismissed the defendant's appeal.
And second, even assuming for purposes of this order that the decision in Carachuri-Rosendo started a new one-year limitation period under § 2255(f)(3), Defendant's motion is untimely. "[Defendant]'s § 2255 motion sought to benefit from the Supreme Court's holding in Carachuri, which was decided June 14, 2010. Thus, he had one year from that date within which to file his motion. Because he did not file his motion until [August 22, 2012], the motion is untimely." United States v. McNeill, Nos. 03-40053-02-JAR, 11-4163-JAR, 2012 WL 33254, at *2 (D. Kan. Jan. 6, 2012); and see Story v. United States, Nos. 2:09-cv-51, 2:02-cr-22, 2012 WL 2128007, at *4 (E.D. Tenn. June 12, 2012) (same).
In accordance with the ruling in United States v. Baker, 484 F. App'x 258, 260, the Court will dismiss Defendant's unauthorized second or successive § 2255 motion for lack of jurisdiction. And see In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (weighing factors announced in Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006), before dismissing or transferring a second § 2255 motion). Furthermore, sua sponte under rule 11(a) of the Rules Governing Section 2255 Cases, the Court determines that Defendant has failed to make a substantial showing that he has been denied a constitutional right. The Court will therefore deny a certificate of appealability. See rule 11(a); United States v. Harper, 545 F.3d 1230, 1223 (10th Cir. 2008) ("[D]ismissal of an unauthorized § 2255 motion is a 'final order in a proceeding under section 2255' such that § 2253 requires petitioner to obtain a COA before he or she may appeal.").
IT IS THEREFORE ORDERED that Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (CV Doc. 1; CR 05-1375 JC Doc. 102) filed on August 22, 2012, is DISMISSED for lack of jurisdiction; a certificate of appealability is DENIED; and judgment will be entered.
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JOHN EDWARDS CONWAY
SENIOR UNITED STATES DISTRICT JUDGE