Ross v. United States of America

Filing 5

ORDER; re 4 Order. Court granted Defendant's motion to reconsider, vacated its prior Order and Judgment, and granted him leave to file a reply. On December 11, 2015, the Court received Defendant's reply brief. Having considered his re ply in conjunction with the allegations in the original motion, the Court finds as follows, the Court concludes that Defendant's motion was untimely and is therefore subject to dismissal. Even if the motion were timely filed, for the reasons s et forth in the Court's June 30, 2015 Order, the claims would be denied on the merits. Defendant's Motion to Vacate is hereby DENIED AS UNTIMELY. IT IS SO ORDERED this 16th day of December, 2015. Signed by Honorable David L. Russell on 12/16/15. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.

DENZEL ARION ROSS,
Defendant.

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CR-13-54-R
CIV-15-535-R

ORDER
Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody. On June 30, 2015, the Court entered an Order denying Defendant's request
for relief. Thereafter, on August 27, 2015, Mr. Ross filed a Motion to Reconsider, asserting
therein that he had not received a copy of the Government's response to his motion and
therefore had been denied an opportunity to file a reply brief in support of his motion. On
September 2, 2015, the Court granted Defendant's motion to reconsider, vacated its prior
Order and Judgment, and granted him leave to file a reply. On December 11, 2015, the Court
received Defendant's reply brief. Having considered his reply in conjunction with the
allegations in the original motion, the Court finds as follows.
Petitioner pled guilty to bank robbery and was sentenced on July 11, 2013 to a term
of 100 months imprisonment. He did not appeal. His conviction became final when the time
expired for him to file a timely appeal—14 days following the date judgment was entered
against him . See Fed. R.App. P. 4(b)(1). Accordingly, Mr. Ross' conviction became final on

July 25, 2013. As such, if the one-year period set forth in 28 U.S.C. § 2255(f)(1) applies, his
§ 2255 motion was due not later than July 25, 2014, and this motion, filed May 18, 2015,
would be untimely.
In its prior Order the Court noted the government's contention that the instant motion
was time barred. In explaining why he did not file an appeal or prior collateral attack, Mr.
Ross cited to an October 14, 2014 directive issued by then-Attorney General Eric Holder.
Doc. No. 39, p. 6. Therein Mr. Holder allegedly directed prosecutors not to enforce collateral
attack waivers in existing plea agreements. Id. In his reply Defendant also argues that his
challenge is timely because his second ground for relief is a jurisdictional challenge. He
argues that his stipulation at the time of his plea of guilty that the Bank of the West was
insured by the FDIC was ineffective, because litigants cannot stipulate to the Court's
jurisdiction.
Having had the benefit of full briefing by the movant, the Court disagrees with both
of his arguments regarding timeliness. 28 U.S.C. § 2255(f) provides:
(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.
The government advocated for application of § 2255(f)(1), which would render Defendant's
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challenge untimely. Defendant contends that the statement issued by Eric Holder in October
2014 allows him to rely on § 2255(f)(2), which would render his § 2255 timely.
Eric Holder's statement in October 2014 was set forth in the Court's June 30, 2015
order. Therein Mr. Holder instructed the various United States Attorneys' offices not to
enforce collateral review waivers in cases involving claims of ineffective assistance of
counsel. Defendant herein is not asserting an ineffective assistance of counsel claim.
Furthermore, the fact that a defendant agrees to a waiver of such review was not an
impediment created by the government that was then removed, and therefore, by its terms,
§ 2255(f)(2) does not apply.
Defendant's contention that he may challenge the Court's jurisdiction at any time is
similarly without merit. 28 U.S.C. § 2255(a) specifically provides that grounds for relief
include the fact that the Court was without jurisdiction to impose sentence. Defendant
admitted the Bank's insured status during the plea process. There is nothing improper about
stipulating this fact. Furthermore, there is nothing improper about stipulating to facts that
support the Court's jurisdiction over a claim, as distinguished from Defendant's contention
that parties cannot stipulate to the Court's jurisdiction. See United States v. Kunzman, 54 F.3d
1522, 1527 (10th Cir. 1995)("The parties stipulated that the accounts of the Central Bank of
Greeley were insured by the FDIC during the time the transactions took place. The stipulated
facts were sufficient to confer jurisdiction under section 1956."). Defendant stipulated to a
fact, which is entirely permissible and provides no basis for him to ignore the deadline set
forth in 28 U.S.C. § 2255(f)(1). Accordingly, the Court concludes that Defendant's motion
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was untimely and is therefore subject to dismissal. Even if the motion were timely filed, for
the reasons set forth in the Court's June 30, 2015 Order, the claims would be denied on the
merits.
Defendant's Motion to Vacate is hereby DENIED AS UNTIMELY.
IT IS SO ORDERED this 16th day of December, 2015.

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