United States District Court, D. Arizona
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
...