Olivas-Sepulbeda v. USA

Filing 3

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner must show cause, no later than twenty-one (21) days from the date of this Order, why this action should not be dismissed. Show Cause Response due by 3/3/2017. Signed by District Judge Rodney W. Sippel on 2/10/2017. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ABRAHAN OLIVAS-SEPULBEDA,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 1:17-CV-28 RWS

MEMORANDUM AND ORDER
This matter is before me on the motion of Abrahan Olivas-Sepulbeda to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255. It appears that the
motion is barred by the statute of limitations. As a result, movant must show cause
why this action should not be summarily dismissed.
Movant pled guilty to conspiracy to distribute methamphetamine and reentry of deported aliens. On October 20, 2010, I sentenced him to 120 months’
imprisonment. He did not file an appeal.
Movant filed the instant motion on February 3, 2017. He argues that his
plea was unknowing and involuntary because counsel promised him he would
receive a lower sentence. He says he did not file the motion within the one-year
limitations period because he did not have anyone to help him with it and because
he is not a native English speaker.

Under 28 U.S.C. § 2255(f):
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of-(1) the date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
An unappealed criminal judgment becomes final for purposes of calculating
the time limit for filing a motion under § 2255 when the time for filing a direct
appeal expires. Moshier v. United States, 402 F.3d 116, 118 (2nd Cir. 2005). In
this case, the judgment became final fourteen days after the judgment was entered
on October 20, 2010. Fed. R. App. Proc. 4(b)(1). As a result, the one-year period
of limitations under § 2255 expired on November 3, 2011.
Under the doctrine of equitable tolling, the AEDPA’s statutory limitations
period may be tolled if a petitioner can show that (1) he has been diligently
pursuing his rights and (2) an extraordinary circumstance stood in his way.
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Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is a flexible
procedure that involves both recognition of the role of precedent and an
“awareness of the fact that specific circumstances, often hard to predict in advance,
could warrant special treatment in an appropriate case.” Id. at 649-50. In general,
pro se status is not an extraordinary circumstance that calls for equitable tolling.
Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (holding that “even in the
case of an unrepresented prisoner alleging a lack of legal knowledge or legal
resources, equitable tolling has not been warranted”).
Petitioner must show cause why his petition should not be dismissed as
untimely. In doing so, he must explain why he believes he meets the requirements
set forth in Holland v. Florida. The response must be filed within twenty-one (21)
days.
Accordingly,
IT IS HEREBY ORDERED that petitioner must show cause, no later than
twenty-one (21) days from the date of this Order, why this action should not be
dismissed.
Dated this 10th day of February, 2017.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
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