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Laughing v. United States

United States District Court, D. Arizona

June 5, 2017

Everett Chee Laughing, Petitioner/Movant/Defendant,
v.
United States of America, Respondent/Plaintiff.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending 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. (Doc. 8.)

         In 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 novo.[1]

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.)[2] 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 court.” (Id.)
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 immunity.” (Id.)

(Doc. 8 at 2-3.)

         The 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 ยง ...


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