Begay v. United States

          REPORT & RECOMMENDATION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

          James F. Metcalf, United States Magistrate Judge

         I. MATTER UNDER CONSIDERATION

         Movant has filed an Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 7). The Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

         Movant was indicted in this District on one count each of Possession with Intent to Distribute a Controlled Substance, Methamphetamine and Possessing a Firearm in Relation to a Drug Trafficking Crime. (CRDoc. 1) (Filings in the underlying criminal case, CR-17-8014-PHX-DGC are referenced herein as “CRDoc. ___.”) He eventually entered a Plea Agreement (CRDoc. 26) and entered a guilty plea to the charges, with various concessions (CR Doc. 17, M.E. 3/14/17). The plea was accepted, and on June 5, 2017 Movant was sentenced to consecutive terms of 48 months and 60 months in prison, followed by 60 months supervised release. (CRDoc. 20, Order 4/5/17; CRDoc. 25, M.E. 6/5/17; and CRDoc. 27, Judgment.)

         Movant did not file a direct appeal. (Motion at 2.)

         On November 26, 2018 (over 17 months after sentencing), Movant filed a “Motion to Correct Sentence” (Doc. 1), pursuant to Federal Rule of Criminal Procedure 35(a). That motion was denied as delinquent (being due within 14 days after sentencing), and because the grounds asserted were not “arithmetical, technical, or other clear error.” (Order 1/7/19, Doc. 6.) Movant was given notice that the Court intended to construe the motion as one under 28 U.S.C. § 2255 and a deadline to either withdraw the motion or file an amended motion on the proper form. (Id.)

         On January 24, 2019, Movant filed the instant Amended Motion to Vacate (Doc. 7, herein “Motion”) pursuant to 28 U.S.C. § 2255.

Movant asserts that his sentences should have been concurrent, rather than consecutive. Movant alleges that his counsel was ineffective for failing to object to the consecutive sentences and misled Movant into believing that “the trust he ensured in his defense team was for the full benefit of himself.” Movant also asserts that the prosecution “hypothesized and made high argument.”

(Order 2/27/19, Doc. 8 at 2.)

         On April 26, 2019, Respondent filed its Response (Doc. 9) to the Motion, arguing that: (1) the motion is untimely; and (2) concurrent sentences on the firearms offense is precluded by 18 U.S.C. § 924(c)(1)(D)(ii).

         Movant was given through June 3, 2019 to reply in support his Motion. (Order 4/30/19, Doc. 10.) Movant has not replied.

         III. APPLICATION OF LAW TO FACTS

         Statute of Limitations - Respondent argues the Motion is untimely. The statute of limitations applicable to habeas proceedings by federal prisoners generally provides that motions to vacate filed beyond the one year limitations ...