Lehi v. USA
MEMORANDUM DECISION AND ORDER - It is ordered that 1 Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,or Correct Sentence by a Person in Federal Custody is DENIED as time barred.It is further ordered that 11 Petitioner's request for an evidentiary hearing is likewise DENIED. It is further ordered that a certificate of appealability shall not be issued. Signed by Judge Bruce S. Jenkins on 7/6/15. (ss)
2015 JUL 7 PM 1:05
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MEMORANDUM OPINION AND ORDER
Civil No. 2:14-cv-00208
UNITED STATES OF AMERICA,
Judge Bruce S. Jenkins
As evidenced by the summary of the United States, 1 Petitioner, Abe Lehi, has been before
this court on many prior occasions, beginning with his plea of guilty before Judge Aldon
Anderson and continuing with subsequent appearances before the undersigned Judge. This
extensive procedural history is further described in this court's prior Memorandum Opinion and
Order issued on March 5, 2014 in response to Petitioner's most recent prior motion. 2
Presently before the court is Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody, which Petitioner filed on March 20,
2014. 3 Following a court order to respond and an extension of time to respond, 4 the United States
'Government's Resp. to Mot. to Vacate, Set Aside, or Conect Sentence, filed Oct. 17,2014 (CM/ECF No.
7) at 4-7.
Lehi v. USA, 2:12-cv-00518-BSJ, (CM/ECF No.9).
\CM/ECF No. 1).
0rder, filed June 18, 2014 (CM/ECF No.3); Order Granting Government's Mot. for Extension of Time to
File Resp., filed Aug. 6, 2014 (CM/ECF No. 6).
filed an answer on October 17, 2014. 5 After receiving his own extension of time to respond, 6
Petitioner filed a reply, as well as a request for an evidentiary hearing, on December 3, 2014.
After thorough examination of the present and prior pleadings and the examination by the
court of appeals, this court is of the opinion that the current petition is untimely, that there is no
good reason for an evidentiary hearing, that a certificate of appealability should not be issued,
and that Petitioner's current pending motion should be DENIED.
Petitioner's § 2255 motion and related request for an evidentiary hearing raise questions
as to (i) whether Petitioner is entitled to an evidentiary hearing on his motion; (ii) whether
Petitioner's motion should be granted; and (iii) whether the court should issue a certificate of
appealability. The court will address each question in tum.
A. Evidentiary Hearing
In relevant part, 28 U.S. C. § 2255 states as follows:
(b) Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the court
shall cause notice thereof to be served upon the United States
attorney, grant a prompt hearing thereon, determine the issues and
make findings of fact and conclusions of law with respect thereto.
Here, the court determines that "the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief." As further analyzed below,
Petitioner's motion was not filed in a timely manner and is thus barred. It being clear that
Government's Resp. to Mot. to Vacate, Set Aside, or Correct Sentence, filed Oct. 17,2014 (CM/ECF No.
0rder, filed Oct. 30, 2014 (CM/ECF No.9).
Pet'r's Mem. in Supp. of2255 Mot. and Opposing Government's Reply, filed Dec. 3, 2014 (CM/ECF No.
Statement as to Need of an Evidentiary Hr'g, filed Dec. 3, 2014 (CM/ECF No. 11).
Petitioner is not entitled to relief, the court finds that Petitioner is not entitled to an evidentiary
B. 28 U.S.C. § 2255 Motion
As this court previously noted, 10 in 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act ("AEDPA''), which among other things, imposed a one-year statute
oflimitations on the filing of motions for relief pursuant to 28 U.S.C. § 2255Y Specifically, 28
U.S.C. § 2255(f), as amended by AEDPA, 12 states as follows:
(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
(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
(4) the date on which the facts supporting the claim
or claims presented could have been discovered
through the exercise of due diligence.
See United States v. Edwards, 588 Fed.Appx. 823, 826-27 (lOth Cir. 2014) ("Reasonable jurists could not
debate the right-to-testify claim did not relate back and was therefore untimely. An evidentiary hearing would not
Lehi v. USA, 2:12-cv-00518-BSJ, (CM/ECF No.9), at 7.
Pub. L. No. 104-132, §105, 110 Stat 1214.
The excerpt from 28 U.S.C. § 2255 also reflects stylistic changes made to the statute in 2008 by
amendment. See Pub. L. No. 110-177, § 511, 121 Stat 2534.
The AEDPA one-year statute of limitations for § 2255 motions became effective as of
April24, 1996. Where, under§ 2255(£)(1), the statute oflimitations runs one year from "the date
on which the judgment of conviction becomes final," the Tenth Circuit determined that federal
prisoners whose convictions became final on or before April 24, 1996-such as is the case with
Petitioner-were thus required to file motions pursuant to § 2255 on or before April24, 1997. 13
As noted, Petitioner did not file the present§ 2255 motion until March 20, 2014, nearly
seventeen years after the April 24, 1997 cutoff. Further, the Tenth Circuit already detennined that
Petitioner's prior pro se motions, filed in 2002 and 2004, were time barred. 14 Therefore, under §
2255(£)(1), Petitioner's present motion should be denied as untimely.
Petitioner has failed to establish that one of the three remaining subsections of28 U.S.C.
§ 2255(£)-i.e., § 2255(£)(2), § 2255(£)(3), § 2255(£)(4)-applies to Petitioner's case. Petitioner
has not demonstrated under § 2255(£)(2) that an unlawful government action, only removed in
the last_ year, impeded Petitioner's ability to file a petition. Similarly, Petitioner has not identified
under § 2255(£)(3) a right newly recognized by the United States Supreme Court made
retroactively applicable on collateral review. Finally, Petitioner's statement that "information
found out has only come to light recently but [Petitioner] could not find a person willing to
present the issues because of discrimination and bias against the nature of the offense," 15 is
insufficient to make Petitioner's motion timely under § 2255(f)(4). Petitioner provides no
See United States v. Hurst, 322 F.3d 1256, 1260-61 (lOth Cir. 2003); United States v. Simmonds, 111 F.3d
737, 744-46 (lOth Cir. 1997) (ovenuled in part by Hurst, 322 F. 3d 1256, 1261 n.4).
Lehi v. USA, 2:04-cv-969-BSJ, (CM/ECF No. 14), at 3-4 ("The Antiterrorism and Effective Death Penalty
Act became effective on April24, 1996. Defendant, whose convictions became final before that date, had until April
24, 1997 to file a§ 2255 motion. United States v. Hurst, 322 F.3d 1256, 1260 (lOth Cir. 2003)~ He failed to do so.
The deadline for Defendant to file a § 2255 motion had expired by the time he filed his prose motions in the district
court in 2002 and 2004. See 28 U.S.C. § 2244(d). Because Defendant was barred from filing a§ 2255 motion at the
time the district court's recharacterizations occurred, no adverse consequences attached to the recharacterizations.").
Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody,
filed Mar. 20, 2014, (CM/ECF No. 1) at 12 of 13.
material facts that could not have been discovered by the exercise of due diligence prior to the
Therefore, the court determines Petitioner's present§ 2255 motion is untimely and
should be denied. 16
C. Certificate of Appealability
Under Rule 11 of the Rules Goveming § 2255 Proceedings, "[t]he district court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant."
28 U.S.C. § 2253(c)(1)(B) provides: "Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from ... the final order in a
proceeding under section 2255."
The United States Supreme Court has provided the following direction regarding
certificates of appealability ("CO A''):
When the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying constitutional
claim, a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was
correct in its procedural ruling. This construction gives meaning to
Congress' requirement that a prisoner demonstrate substantial
underlying constitutional claims and is in conformity with the
meaning of the "substantial showing" standard provided in
Barefoot, supra, at 893, and n. 4, 103 S.Ct. 3383, and adopted by
Congress in AEDP A. Where a plain procedural bar is present
and the district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
Petitioner's § 2255 motion is similarly not timely under principles of equitable tolling. "Equitable tolling
of the limitations period is available 'when an inmate diligently pursues his claims and demonstrates that the failure
to timely file was caused by extraordinary circumstances beyond his control.'" United States v. Gabaldon, 522 F. 3d
1121, 1124 (lOth Cir. 2008) (quoting Marsh v. Soares, 223 F.3d 1217, 1220 (lOth Cir. 2000)). "[A] claim of
insufficient access to relevant law .. , is not enough to support equitable tolling." Gibson v. Klinger, 232 F.3d 799,
808 (1Oth Cir. 2000). Here, Petitioner has not demonstrated extraordinary circumstances beyond his control that
warrant equitable tolling. Cf United States v. Gabaldon, 522 F. 3d at 1124-27 ("We believe that a complete
confiscation of Mr. Gabaldon's legal materials just weeks before his filing deadline would constitute extraordinary
circumstances for the purposes of equitable tolling.").
district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further. In such a
circumstance, no appeal would be warranted.
Determining whether a COA should issue where the petition was
dismissed on procedural grounds has two components, one
directed at the underlying constitutional claims and one directed at
the district court's procedural holding. Section 2253 mandates that
both showings be made before the court of appeals may entertain
the appeal. Each component of the§ 2253(c) showing is part of a
threshold inquiry, and a court may find that it can dispose of the
application in a fair and prompt manner if it proceeds first to
resolve the issue whose answer is more apparent from the record
and arguments. The recognition that the "Court will not pass upon
a constitutional question although properly presented by the
record, if there is also present some other ground upon which the
case may be disposed of," Ashwander v. TVA, 297 U.S. 288, 347,
56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring),
allows and encourages the court to first resolve procedural issues.
The Ashwander rule should infonn the court's discretion in this
Slackv. McDaniel, 529 U.S. 473,484-85, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000)
Therefore, where, as here, the court has denied Petitioner's claims on procedural
grounds-namely that his § 2255 motion is time-barred-Petitioner may obtain a certificate of
appealability by showing (i) "jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right," and (ii) "jurists of reason would find it
debatable whether the district court was correct in its procedural ruling." The court concludes
that Petitioner cannot satisfy the second component, as jurists of reason would not find it
debatable whether Petitioner's motion is time-barred. 17 Therefore, no certificate of appealability
Having concluded that the second component is not met, the court need not address the first componenti.e., whether "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a
(continued ... )
The court concludes that Petitioner's § 2255 motion is time barred. The motion and the
files and records of the case conclusively show that Petitioner's § 2255 motion falls outside the
one-year statute of limitations period. Jurists of reason would not find the timeliness of
Petitioner's motion debatable.
IT IS ORDERED that Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody is DENIED as time barred.
IT IS FURTHER ORDERED that Petitioner's request for an evidentiary hearing is
IT IS FURTHER ORDERED that a certificate of appealability shall not be issued .
DATED this 6_ day of July, 2015.
constitutional right." See United States v. Marizcales-Delgadillo, 243 F. App'x 435, 439 (lOth Cir. 2007) ("The
Slack test is disjunctive, so we may base our denial of a COA on Mr. Marizcales-Delgadillo's failure to meet either
part of the test.").
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