Berhane v. USA
Filing
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ORDER DISMISSING AS UNTIMELY PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255; ORDER DENYING MOTION SEEKING EQUITABLE TOLLING; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY re 1 - Signed by JUDGE SUSAN OK I MOLLWAY on 12/28/2015. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Aman Berhane served by first class mail at the address of record on December 28, 2015.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
vs.
)
)
AMAN BERHANE,
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)
Defendant.
)
_____________________________ )
Crim. No. 13-00326 SOM
Civ. No. 15-00496 SOM/BMK
ORDER DISMISSING AS UNTIMELY
PETITION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE UNDER 28
U.S.C. § 2255; ORDER DENYING
MOTION SEEKING EQUITABLE
TOLLING; ORDER DECLINING TO
ISSUE A CERTIFICATE OF
APPEALABILITY
ORDER DISMISSING AS UNTIMELY PETITION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255; ORDER DENYING MOTION
SEEKING EQUITABLE TOLLING; ORDER DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY
A federal prisoner may move to vacate, set aside, or
correct his or her sentence if it “was imposed in violation of
the Constitution or laws of the United States, . . . the court
was without jurisdiction to impose such sentence, or . . . the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack . . . .”
§ 2255.
28 U.S.C.
However, a federal prisoner must file a § 2255 petition
within one year of “the date on which the judgment of conviction
becomes final.”
28 U.S.C. § 2255(f)(1).
For purposes of a
§ 2255 petition, a judgment becomes final and the limitations
period begins to run “upon the expiration of the time during
which [he or] she could have sought review by direct appeal.”
United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001).
When, as here, a defendant does not timely appeal his
or her judgment of conviction, the judgment becomes final 14 days
after the entry of judgment.
Berhane’s filing of an untimely
Notice of Appeal does not extend this period.
See Johnson v.
United States, 2012 WL 171379, *3-*4 (6th Cir. Jan. 23, 2012)
(for purposes of § 2255(f)(1), limitation period began to run at
the expiration of the time to appeal when no appeal was taken;
untimely notice of appeal did not restart the running of the
limitation period); United States v. Colvin, 204 F.3d 1221, 1222
(9th Cir. 2000) (“a judgment becomes final when the time has
passed for appealing the district court’s entry of the
judgment”); Hernandez-Jasso v. United States, 2014 WL 1783956, *1
(E.D. Tenn. May 5, 2014) (for purposes of § 2255(f)(1), the “fact
that petitioner filed an untimely notice of appeal . . . , has no
impact on the date his conviction became final”); Fed. R. App. P.
4(b)(1)(A) (criminal defendant's notice of appeal must be filed
in district court within 14 days of entry of judgment).
See also
Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) (“If a
defendant does not pursue a timely direct appeal to the court of
appeals, his or her conviction and sentence become final, and the
statute of limitation begins to run, on the date on which the
time for filing such an appeal expired.”); United States v.
Gardner, 2003 WL 21146727, *5 (W.D. Pa. March 12, 2003)
(“conviction therefore became ‘final’ . . . when the 10-day
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period for taking a direct appeal under Fed.R.App.P.
4(b)(1)(A)(I) expired”) (decided under old rule).
The Judgment in Defendant Aman Berhane’s underlying
criminal case was entered on May 29, 2014.
See
ECF No. 48.
Berhane placed his Notice of Appeal in the mail on or about May
27, 2015, nearly one year after the entry of judgment.
See Noble
v. Adams, 676 F.3d 1180, 1182 (9th Cir. 2012) (quoting Stillman
v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003)) (under the
“prison mailbox rule,” “a pro se prisoner’s filing of a . . .
habeas petition is deemed filed at the moment the prisoner
delivers it to prison authorities for forwarding to the clerk of
the court”).
On October 21, 2015, the Ninth Circuit denied Berhane's
request to proceed IFP because it found the appeal frivolous.
gave him 21 days to pay the filing fee.
ECF No. 64.
It
On November
20, 2015, the Ninth Circuit issued its order dismissing the
appeal given Berhane’s failure to pay the filing fee.
ECF No.
65.
On November 27, 2015, Berhane filed the present 2255
motion (the postmark reads November 23, 2015).
ECF No. 66-1,
PageID # 293.
On December 1, 2015, the court issued an Order to Show
Cause Why Action under 28 U.S.C. § 2255 Should Not Be Dismissed
as Untimely.
See ECF No. 67.
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On December 21, 2015, Berhane responded to the Order to
Show Cause by filing a motion seeking equitable tolling of the
limitation period.
See ECF No. 68.
The Ninth Circuit has
recognized equitable tolling with respect to the limitation
period for filing motions under § 2255.
See United States v.
Castro-Verdugo, 750 F.3d 1065, 1071 (9th Cir. 2014) (“after the
one-year statute of limitations has passed, we may consider a
§ 2255 motion to vacate, set aside, or correct a sentence only if
the petitioner establishes eligibility for equitable tolling by
showing (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and
prevented timely filing.” (quotation marks and citations
omitted)); United States v. Aguirre-Ganceda, 592 F.3d 1043, 1046
(9th Cir. 2010) (“Even though Aguirre’s section 2255 motion was
untimely, we may toll the one-year limitation period if (1) the
petitioner has diligently pursued his rights, and
(2) extraordinary circumstances exist.”).
“[T]he threshold
necessary to trigger equitable tolling . . . is very high.”
Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006).
Berhane fails to show entitlement to equitable tolling.
Berhane argues that the limitation period should be tolled
because of a lack of diversity of citizenship.
citizenship is inapplicable cases under § 2255.
§ 1332.
But diversity of
See 28 U.S.C.
Given the inapplicability of Berhane’s diversity of
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citizenship argument, and given the court’s inability to glean
any other reason for equitable tolling from Berhane’s submission,
the court determines that the one-year period for filing a § 2255
motion has run.
In so ruling, the court declines to hold an
evidentiary hearing on the matter, as Berhane submits nothing
even hinting that any evidence might entitle him to relief.
Notwithstanding his 2015 Notice of Appeal, Berhane’s
Judgment became final in June 2014, when he failed to file a
timely appeal to the Ninth Circuit.
See Johnson, 2012 WL 171379,
at *3-*4; Colvin, 204 F.3d at 1222.
The one-year limitation
period therefore began to run in June 2014.
Because Berhane did
not file the present § 2255 motion within one year of when his
judgment became final, and because he failed to demonstrate that
the period should be equitably tolled, his
§ 2255 motion is untimely.
The court therefore dismisses
Berhane’s § 2255 motion and denies his motion seeking equitable
tolling.
The court declines to issue Berhane a certificate of
appealability.
No reasonable jurist would find it debatable as
to whether Berhane’s motion is untimely.
U.S. 473, 484 (2000).
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Slack v. McDaniel, 529
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 28, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
U.S. v. Berhane, Crim. No. 13-0326 SOM; Civ. No. 15-00496 SOM/BMK; ORDER DISMISSING AS
UNTIMELY PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255;
ORDER DENYING MOTION SEEKING EQUITABLE TOLLING; ORDER DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY
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