Aubrey v. USA

Filing 2

ORDER. IT IS ORDERED that 227 , 228 Movants Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 is DENIED. IT IS FURTHER ORDERED that Movant is DENIED a Certificate of Appealability. Signed by Judge Kent J. Dawson on 2/18/2021. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:19-cv-02217-KJD Document 2 Filed 02/18/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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UNITED STATES OF AMERICA,

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Respondent,

Case No. 2:09-cr-00206-KJD-PAL
2:19-cv-02217-KJD

v.

ORDER

WILLIAM AUBREY,
Movant.
Presently before the Court is Movant’s Motion to Vacate, Set Aside or Correct Sentence

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under 28 U.S.C. § 2255 (#227/228) filed December 23, 2019. Having reviewed the motion and

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finding that it is clearly time barred, the Court must deny the motion. Further, even if the motion

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was timely, the Court would deny it on the merits.

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Movant was convicted at jury trial of two counts of violating 18 U.S.C. § 1163,

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embezzlement, theft, misapplication and conversion of money and funds from a tribal

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organization. See Jury Verdict, Doc. No. 149. He was sentenced on November 22, 2013 and

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Amended Judgment (#195) was entered December 9, 2013. Plaintiff appealed (#169) his

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conviction and sentence. The Ninth Circuit Court of Appeals affirmed (#221) the judgment of

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the court and mandate (#222) issued on November 17, 2015.

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Section 2255 imposes a one-year statute of limitations on a section 2255 motion. 28

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U.S.C. § 2255(f). The limitations period begins to run from “the date on which the judgment of

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conviction becomes final.” 28 U.S.C. § 2255(f)(1). Thus, Movant was required to file the present

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motion no later than November 17, 2016. However, he did not file the present motion until

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December 23, 2019. Therefore, his motion is untimely and denied. Further, Movant has failed to

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identify any “extraordinary circumstances beyond [his] control that made it impossible for [him]

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to file [his] motion within the appropriate time period.” United States v. Schwartz, 274 F.3d

Case 2:19-cv-02217-KJD Document 2 Filed 02/18/21 Page 2 of 3

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1220, 1223 (9th Cir. 2001). Though Movant cites “newly discovered evidence[,]” he has not

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stated what that evidence is or why he could not have discovered within one-year of his

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conviction becoming final.
Essentially, Movant argues that pursuant to the Native American Housing Amendment

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and Self Determination Act of 1996 (“NAHASDA”) and reauthorized in 2008 repealed 18

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U.S.C. § 1163. Movant relies on 25 U.S.C. § 4116 for this proposition. However, § 4116,

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“Regulations”, merely requires the promulgation of federal regulations that transfers “assistance

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for Indian tribes and Indian housing authorities under the United States Housing Act of 1937” to

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NAHASDA. Therefore, Movant is not entitled to relief.

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Finally, the Court must deny a certificate of appealability. To proceed with an appeal,

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petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P.

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22(b); 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United

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States v.Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make “a

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substantial showing of the denial of a constitutional right” to warrant a certificate of

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appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

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“The petitioner must demonstrate that reasonable jurists would find the district court's

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assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484).

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To meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are

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debatable among jurists of reason; that a court could resolve the issues differently; or that the

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questions are adequate to deserve encouragement to proceed further. Id. Movant has not met his

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burden in demonstrating that the timeliness of his motion is debatable or that the Court’s finding

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that 18 U.S.C. § 1163 has not been repealed is wrong.
Accordingly, IT IS HEREBY ORDERED that Movant’s Motion to Vacate, Set Aside, or

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Correct Sentence Pursuant to 28 U.S.C. § 2255 (#227/228) is DENIED;

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IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for

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Respondent and against Movant in the corresponding civil action, 2:19-cv-2217-KJD, and close

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that case;

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///

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Case 2:19-cv-02217-KJD Document 2 Filed 02/18/21 Page 3 of 3

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IT IS FURTHER ORDERED that Movant is DENIED a Certificate of Appealability.
DATED this 18th day of February 2021.

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_____________________________
Kent J. Dawson
United States District Judge

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