Berhane v. USA

Filing 6

ORDER DETERMINING THAT PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 IS UNTIMELY AND DISMISSING PETITION; ORDER DENYING MOTION SEEKING EQUITABLE TOLLING; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY re 1 - Signed by JUDGE SUSAN OKI MOLLWAY on 12/29/2015. "The one-year limitation period began to run in June 2014, when Berhane's criminal judgment became final for purposes of § 2255(f)(1). Because Berhane did not file the present § 2255 motion within one year of when his criminal judgment became final, and because he has failed to demonstrate that the period should be equitably tolled, his § 2255 motion is untimely. The court therefore dismisses B erhane'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 debatable the untimeliness of Berhane's motion filed o n November 27, 2015. Slack v. McDaniel, 529 U.S. 473, 484 (2000)." (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 shall be served by first class mail at the address of record on December 30, 2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
AMAN BERHANE,
)
)
Defendant.
)
_____________________________ )

Crim. No. 13-00326 SOM
Civ. No. 15-00496 SOM/BMK
ORDER DETERMINING THAT PETITION
TO VACATE, SET ASIDE, OR
CORRECT SENTENCE UNDER 28
U.S.C. § 2255 IS UNTIMELY AND
DISMISSING PETITION; ORDER
DENYING MOTION SEEKING
EQUITABLE TOLLING; ORDER
DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

ORDER DETERMINING THAT PETITION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. § 2255 IS UNTIMELY AND DISMISSING
PETITION; ORDER DENYING MOTION SEEKING EQUITABLE TOLLING; ORDER
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I.

INTRODUCTION.
Defendant Aman Berhane filed a motion under 28 U.S.C.

§ 2255.

Because that motion is untimely, and because the court

denies Berhane’s motion seeking equitable tolling of the
limitation period, the § 2255 motion is dismissed.

The court

declines to issue a certificate of appealability and orders the
Clerk of Court to enter judgment and close this matter.
II.

BACKGROUND FACTS.
On April 3, 2013, Berhane was indicted for drug and

firearm crimes.

See Indictment, ECF No. 9.

On May 23, 2013, Berhane consented in writing to a Rule
11 plea in a felony case before a United States Magistrate Judge.
See ECF No. 24.

Both Berhane and his attorney signed that

document, which stated, “I have been advised by my attorney and

the United States Magistrate Judge of my right to enter my plea
in this case before a United States District Judge.”

Id.

Berhane then pled guilty with respect to Counts 1, 2, 3, and 4 of
the Indictment before Magistrate Judge Barry M. Kurren.
No. 22.

See ECF

At that hearing, Magistrate Judge Kurren advised

Berhane, “[I]f you choose to enter a guilty plea you, of course,
have the right to enter your plea before the District Judge who
is assigned to your case and in your case it is Judge Mollway.
If you consent, however, you
Magistrate Judge.”

may enter your plea before me, a

ECF No. 63, PageID # 252-53.

Magistrate

Judge Kurren issued a Report and Recommendation concerning
Berhane’s guilty plea, which this district judge accepted.

This

judge then determined that Berhane was guilty of those offenses.
See ECF Nos. 23 and 26.
Berhane was sentenced to concurrent 240-month terms of
imprisonment for each of the drug crimes and a 120-month term of
imprisonment for being a felon in possession of a firearm, and
the judgment was entered on May 29, 2014.

See

ECF No. 48.

On April 23, 2015, the court received a Motion to
Withdraw and Nullify Guilty plea dated April 18, 2015.
No. 51.

See ECF

This motion complained that Berhane had not been advised

of his right to have a district judge conduct the change of plea
hearing, and that the Magistrate Judge was not allowed to accept
his guilty plea.

Id.

As noted above, however, Berhane was

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advised of his right to enter his change of plea before a
district judge.

Additionally, the Magistrate Judge did not

accept his guilty plea, instead issuing a Report and
Recommendation, which this district judge adopted, adjudging
Berhane guilty.
On April 23, 2015, the court ordered Berhane to clarify
whether he intended his Motion to Withdraw and Nullify Guilty
Plea to be a § 2255 motion, warning him of the one-year
limitation period and of the one § 2255 motion limit absent
permission from the Ninth Circuit Court of Appeals.

See ECF No.

52.
On May 11, 2015, Berhane clarified that he did not want
his filing of April 23, 2013, to be construed as a § 2255 motion.
See ECF No. 53, PageID # 195 (“The defendant further contends
that his April 23, 2015 filing is not intended, nor can it be
construed as a petition filed pursuant to 28 U.S.C. § 2255.”).
On May 12, 2015, the court denied Berhane’s Motion to
Withdraw and Nullify Guilty Plea.

See ECF No. 55.

In that

order, the court stated, “If Berhane opts to proceed under § 2255
after all, he must so notify the court.
will consider this matter concluded.”

Otherwise, this court
Id.

On June 1, 2015, not having notified this court of any
intent to have his filing of April 23, 2015, construed as a
§ 2255 motion, Berhane filed a Notice of Appeal from the court’s

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order of May 12, 2015.

See ECF No. 56.

Berhane placed his

Notice of Appeal in the mail on or about May 27, 2015, which was
nearly one year after the entry of the judgment in his criminal
case.

Id.
On October 21, 2015, the Ninth Circuit denied Berhane's

request for in forma pauperis status because it found the appeal
frivolous.
64.

It gave him 21 days to pay the filing fee.

ECF No.

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.

On December 21, 2015, Berhane responded to the Order to
Show Cause by filing a motion seeking equitable tolling of the
limitation period.
III.

See ECF No. 68.

APPLICABLE LAW.
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

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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 in this case, a defendant does not timely
appeal his or her judgment of conviction, the judgment becomes
final 14 days after the entry of judgment.

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”); 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 period for taking a direct

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appeal under Fed.R.App.P. 4(b)(1)(A)(I) expired”) (decided under
old rule).
IV.

BERHANE’S § MOTION IS UNTIMELY.
The judgment in Berhane’s underlying criminal case was

entered on May 29, 2014.

See

ECF No. 48.

Berhane placed his

§ 2255 motion in the prison mail system on or about November 23,
2015, more than 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 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 under § 2255(f)(1), which sets forth a oneyear limitation period for filing motions under § 2255.

See ECF

No. 67.
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

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§ 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
and his § 2255 motion is therefore time-barred.

Berhane argues

that the limitation period should be tolled because of a lack of
diversity of citizenship.

But diversity of citizenship is

inapplicable to cases under § 2255.

See 28 U.S.C. § 1332.

Given

the inapplicability of Berhane’s diversity of 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.
The court notes that Berhane has failed to allege or
even to hint at evidence of actual innocence that equitably tolls

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the one-year limitation period.

See United States v. Chapman,

220 F. App'x 827, 830 (10th Cir. 2007) (“It is true that a claim
of actual innocence may equitably toll the one-year statute of
limitations set forth in 28 U.S.C. § 2255.”).

At most, his

motion argues that he “was convicted of a non-existing offence,
thus [he is] actually innocent.”

See ECF No. 66, PageID # 291.

But at his change of plea hearing, the Government summarized the
crimes charged in the indictment and the facts supporting the
charges.

See ECF No. 63, PageID # 262-67.

those facts were true in every respect.

Berhane agreed that

Id., PageID # 267.

He

then summarized what he had done, stating, for example, “I
received a package that contained methamphetamine with the intent
to distribute.”

Id.

Berhane’s general reference to being

innocent, without more, is insufficient to overcome his own
admission to conduct that clearly constitutes a crime.
In ruling that Berhane has failed to demonstrate that
equitable tolling applies, the court declines to hold an
evidentiary hearing, as Berhane submits no allegation that might
entitle him to relief.

See Laws v. Lamarque, 351 F.3d 919, 919

(9th Cir. 2003) (defendant is entitled to an evidentiary hearing
when he or she makes “a good-faith allegation that would, if
true, entitle him to equitable tolling” of the one-year period
set forth in § 2255(f)(1)” (quotation marks and citation
omitted)).

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Under the circumstances presented here, Berhane fails
to establish circumstances beyond his control that made it
impossible for him to file his motion on time.
Lampert, 465 F.3d 964, 969 (9th Cir. 2006).

See Roy v.

This court warned

Berhane when it received his motion of April 23, 2015, about the
one-year limitation period and of the limit to a single § 2255
motion.

See ECF No. 52.

The court asked Berhane if he wanted

that earlier filing to be construed as a § 2255 motion.
Berhane was adamant that he did not.

See ECF No. 53.

Id.
When the

court denied the motion of April 23, 2015, it again invited him
to notify the court if he wanted it construed as a § 2255 motion.
See ECF No. 55.

Instead of saying that he did, he appealed.

Berhane did not argue that he believed the filing of his motion
on April 23, 2015, and his ensuing appeal tolled the limitation
period.

Additionally, the baseless collateral relief motion and

appeal, which the Ninth Circuit said was frivolous, by
themselves, did not automatically toll the running of the
limitation period.

See, e.g., United States v. Redd, 562 F.3d

309, 312 (5th Cir. 2009) (collateral relief motion brought under
Rule 33 for new trial and filed more than 14 days after entry of
judgment did not toll the § 2255(f)(1) limitation period).
Even if Berhane’s 2015 Notice of Appeal could be
construed as an appeal from his criminal judgment rather than
from this court’s post-judgment order filed on May 12, 2015,

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Berhane’s criminal judgment became final in June 2014, when he
failed to file a timely appeal to the Ninth Circuit.

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).

His 2015 motion and appeal in no way

extended that deadline even if they could be said to have
challenged the 2014 criminal judgment.

See 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”).
V.

CONCLUSION.
The one-year limitation period began to run in June

2014, when Berhane’s criminal judgment became final for purposes
of § 2255(f)(1).

Because Berhane did not file the present § 2255

motion within one year of when his criminal judgment became
final, and because he has 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 debatable the

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untimeliness of Berhane’s motion filed on November 27, 2015.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 29, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

U.S. v. Berhane, Crim. No. 13-0326 SOM; Civ. No. 15-00496 SOM/BMK; ORDER DETERMINING
THAT PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 IS
UNTIMELY AND DISMISSING PETITION; ORDER DENYING MOTION SEEKING EQUITABLE TOLLING;
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

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