United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Petitioner's pro se motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence. (Doc. 1.) This case was referred to a Magistrate
Judge, who issued a Report and Recommendation (Doc. 8)
recommending that this Court find that the Motion in this
case is barred by the statute of limitations, and is not
subject to equitable tolling pursuant to § 2255. The
Magistrate Judge further recommends that an evidentiary
hearing is not warranted regarding Petitioner's claims.
reviewing a Report and Recommendation
(“R&R”), this Court must conduct a de novo
review of any portion of the R&R to which either party
objects. United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Circ. 2003) (en banc). Although Petitioner
does not raise any cognizable objections in his filed
Objection (Doc. 9), the Court will review the motion de
On April 13, 2010, an Indictment charged Movant with
Aggravated Sexual Abuse (Count One), Kidnapping (Count Two),
and Assault Resulting in Serious Bodily Injury (Count Three).
(CR Doc. 1.) On February 9, 2011, Movant pleaded guilty
to Count Three pursuant to a plea agreement. (CR Doc. 35.) .
. . .
. . . .
On September 1, 2011, the Court sentenced Movant to 120
months imprisonment and three years of supervised release.
(CR Doc. 49 at 1.)
On September 12 and 13, 2011, Movant and his attorney filed a
Notice of Appeal. (CR Docs. 51, 52.) On March 6, 2013, the
Ninth Circuit Court of Appeals granted Movant's motion to
voluntarily dismiss his appeal. (CR Doc. 65.) The Order also
stated the Order acted as “the mandate of this
On April 16, 2014, Movant filed a Motion for Clarification.
(CR Doc. 67.) . . . . On May 16, 2014, the Court denied the
Motion. (CR Doc. 68.)
On June 23, 2016, Movant [moved] to Vacate, Set Aside, or
Correct Sentence. (Doc. 1.)
. . . .
On October 5, 2016, Respondent filed a Response. (Doc. 5.)
Movant did not file a reply.
On November 23, 2016, Movant also filed a “Notice of
Intent/Notice of Interest.” (Doc. 6.) Movant asserts
the Court charged him “unlawfully because my original
crime was not against the UNITED STATES OF AMERICA, but was
committed on the reservation.” (Id. at 1.) He
asserts the indictment was insufficient, the Court lacks
jurisdiction, and his tribe has “inherent sovereign
(Doc. 8 at 2-3.)
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) provides a one-year statute of
limitations for defendants to file habeas petitions, starting
when their convictions become final. 28 U.S.C. § 2244(d)
(2006). “[F]or federal criminal defendants who do not
file a petition for certiorari with this Court on direct
review, § 2255's one-year limitation period starts
to run when the time for seeking such review
expires.” Clay v. United States, 537
U.S. 522, 532 (2003). The Seventh Circuit Court has held that
a movant under § ...