Arrowgarp v. USA

Filing 8

MEMORANDUM DECISION and Order denying 5 Motion for Discovery; finding as moot 6 Motion for Hearing. Petitioner's 2255 Motion 1 is DENIED. Signed by Judge Dee Benson on 9/24/13. (jlw)

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COURT, DISTRICT OF UTAH

SEP 26 2013
D. MARKJONES, CLEf,,:'
BY
H " __
DEPUTY CLEA,

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

TOMMY ARROWGARP,
Petitioner,

MEMORANDUM DECISION

AND ORDER

v.
Case No.2: 13-CV-363-DB

UNITED STATES OF AMERICA,

Judge Dee Benson

Respondent.

This matter is before the court on petitioner's Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255. (Dkt. No. 1.) At the court's request, the government
filed a response in opposition to the petitioner's motion. (Dkt. No.3.) Petitioner subsequently
filed motions for discovery and an evidentiary hearing. (Dkt. Nos. 5, 6.) Having reviewed the
relevant materials, the court now issues the following Memorandum Decision and Order.
BACKGROUND
On August 11,2004, Tommy Arrowgarp ("petitioner") was charged with Aggravated
Sexual Abuse ofa Minor While Within Indian Country, in violation of 18 U.S.C. §§ 2241(c) and
1153(a); Sexual Abuse ofa Minor While Within Indian Country, in violation of 18 U.S.C. §
2243(a)(l) and 1153(a); and Assault Within Indian Country, in violation of 18 U.S.C. § 113(a)(4)
and 1153(a) (Criminal Case No. 2:03-cr-549-DB, Docket Entry No. 56.) Petitioner was

convicted following a jury trial on February 17,2006. (Dkt. No. 121.) On June 6, 2006, the court
sentenced petitioner to 262 months, followed by 60 months of supervised release. (Dkt. No. 130.)
Judgment was entered on June 7, 2006. (Dkt. No. 130.) On June 14,2006, petitioner filed notice
of appeal to the United States Court of Appeals for the Tenth Circuit arguing improper jury
instructions and an unreasonable sentence. (Dkt. No. 131.) The Tenth Circuit rejected both of
petitioner's arguments and affirmed the conviction and sentence on November 8,2007. United
States v. Arrowgarp, 253 Fed. Appx. 790, 800 (10 th Cir. 2007.)
On May 20, 2013, petitioner filed a motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255. Petitioner claims that he is entitled to a vacated or corrected
sentence on the basis of ineffective assistance of counsel. Petitioner alleges his counsel failed to
object where appropriate, preserve errors for appeal, inform the court ofprosecutorial
misconduct, and call certain persons as witnesses who could both impeach the victim's testimony
and provide mitigating evidence to lessen the length of his sentence. Petitioner further claims
that he is entitled to equitable tolling because he did not learn ofthe Tenth Circuit decision until
June of 2012, four years after it was rendered.
DISCUSSION
I. PETITIONER IS NOT ENTITLED TO A VACATED OR CORRECTED

SENTENCE BECAUSE HE FAILED TO FILE WITHIN THE ONE YEAR
TIME LIMIT PRESCRIBED BY 28 U.S.C. § 2255.
Title 28 United States Code § 2255 permits a prisoner in custody under a sentence of a
United States District Court to move the court to vacate, set aside or correct the sentence.
However, any motion filed pursuant to § 2255 must be filed within one year 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, ifthe 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.
28 U.S.C. § 2255.
Petitioner failed to meet the time limitation required under subsection (1). In this case,
Judgment was entered on November 8, 2007. To meet the deadline under subsection (1),
petitioner was required to file his § 2255 motion by January 8, 2009. Petitioner filed his motion
on May 20,2013.
Subsections (2) and (3) are not applicable to petitioner's appeal. Petitioner's motion is
also untimely under subsection (4) as all of the alleged failures of counsel were known to
petitioner by the date of petitioner's sentencing, on June 5, 2006.
Petitioner filed this motion over four years past the time allotted by § 2255. Furthermore,
he has failed to assert any facts which warrant equitable tolling. Accordingly, petitioner's motion
is not timely as required by § 2255 and should be dismissed.
II. EQUITABLE TOLLING IS NOT WARRANTED BECAUSE PETITIONER
HAS FAILED TO PROVE EITHER EXTRAORDINARY CIRCUMSTANCES
OR THAT HE DILIGENTLY PURSUED HIS CLAIMS.
Extraordinary circumstances may provide a basis for equitable tolling of the limitations
period, but the burden is on the petitioner to demonstrate the inadequacy of the one-year period.

See Miller v. Marr, 141 F.3d 976,978 (loth Cir. 1998.) Here, petitioner refers only to his
attorney's failure to inform him of the court's decision, and the advisement to be patient because

the decision would take time. (Petitioner's Memorandum at 14.) Neither of these claims, even if
true, amount to such egregious behavior that constitute "extraordinary circumstances." Simple
attorney negligence is "insufficient to justify equitable tolling." United States v. Leonard, Fed.
Appx. 191, 193 (lOth Cir. 2009.)
While the one-year limitation period will be tolled for "extraordinary circumstances over
which [an] inmate has no control," even after a showing of extraordinary circumstances, the
Tenth Circuit requires inmates to "diligently pursue claims." Miller at 978 (citing Calderon v.
United States District Court, 128 F.3d 1283, 1289 (9 th Cir. 1997.) Here, petitioner has failed to
demonstrate that he made adequate efforts to learn the status of his appeal during the four years
following the decision. Furthermore, petitioner took nearly one year to file this § 2255 motion
after learning his time had expired.

III. PETITIONER'S MOTION FOR DISCOVERY IS DENIED AND MOTION

FOR EVIDENTIARY HEARING IS MOOT.

Petitioner has moved for discovery (Dkt. No.5) and for an evidentiary hearing (Dkt. No.

6.) Pursuant to Rule 6(a) of § 2255, a "judge may, for good cause, authorize a party to conduct
discovery ...". The petitioner states that "the requested discovery may reveal a clear case of
deficient performance and resultant prejudice so that Movant may even be entitled to summary
judgment." (Dkt. No.5 at 4.) The court does not find good cause to support authorization of
discovery three and a half years after the statute of limitations has run on the filing deadline for
petitioner's § 2255 motion. Petitioner's motion for an evidentiary hearing is deemed moot;
CONCLUSION
For the reasons set forth above and in the government's response (Dkt. No.3),
petitioner's § 2255 motion and motion for discovery are DENIED, petitioner's motion for an

evidentiary hearing is MOOT. The clerk of the court is directed to close case 2: 13-cv-363-DB
forthwith.
DATED this

2~ day of September, 2013.
BY THE COURT:

United States District Judge