Carlucci v. USA

Filing 12

MEMORANDUM DECISION and ORDER DISMISSING 2255 MOTION: For the reasons explained, Carlucci's 2255 Motion is dismissed as untimely. Signed by Judge Dee Benson on 10/9/2015. (kpf)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

GINO CARLUCCI,
Plaintiff,

MEMORANDUM DECISION
AND ORDER
DISMISSING 2255 MOTION

vs.

UNITED STATES OF AMERICA,

Case No. 2:14-CV-924

Defendant.

Judge Dee Benson

This case is before the court on Gino Carlucci’s Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255. Having considered the motion and responsive
memoranda, and being otherwise fully informed, the court enters the following Memorandum
Decision and Order.
DISCUSSION
Motions under § 2255 are subject to the one-year statute of limitations commencing from
the latest of the times set forth in § 2255(f)(1) - (4). These times are:
(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;
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(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(f).
As explained below, the court finds that Carlucci’s § 2255 motion is untimely under any
of the provisions listed in section 2255(f). It is also untimely under the doctrine of equitable
tolling.
Section 2255(f)(1)
First, Carlucci’s motion, filed on December 22, 2014, is untimely because he failed to file
it within the one-year statutory requirement from the date of his final judgment in this case. On
June 2, 2010, Carlucci was sentenced to 60 months probation. However, the sentencing court
held open the issue of restitution and requested additional briefing from the parties. On March
12, 2012, the court entered a restitution order, finalizing the judgment in this case. Pursuant to
the Federal Rules of Appellate Procedure, Carlucci’s conviction became final for purposes of §
2255 when the time expired for him to file a timely appeal – 14 days following the date
judgment was entered against him (i.e., March 26, 2012). See Fed. R. App. P. 4(b)(1).
Therefore, Carlucci’s conviction became final, and the one-year statute of limitations began to
run, on March 26, 2012. Plaintiff did not file the above-captioned 2255 motion until December
22, 2014, well outside the one-year statutory requirement. Accordingly, it is untimely under 28
U.S.C. § 2255(f)(1).

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Section 2255(f)(2)
Carlucci has not alleged any governmental action which violated the Constitution or
federal law and impeded his ability to bring a timely motion. Accordingly, § 2255(f)(2) does not
apply to this case.
Section 2255(f)(3)
Next, Carlucci has not asserted a newly created right recognized by the Supreme Court.
Although Carlucci attempts to assert a “newly created right” under United States v. Harden, 758
F.3d 886 (7th Cir. 1996), as a basis for challenging the magistrate judge’s authority to accept his
guilty plea, there are multiple flaws in this argument. First, Harden is not a Supreme Court case.
Second, Harden is in direct conflict with precedent from the United States Court of Appeals for
the Tenth Circuit recognizing that a magistrate judge’s authority under the “additional duties”
clause of the Federal Magistrates Act, 28 U.S.C. § § 631-39, includes the taking of a felony plea
based on a referral from a district judge. United States v. Ciapponi, 77 F.3d 1247, 1250 (10th Cir.
1996). Additionally, in Ciapponi the Tenth Circuit also held that the referral of a felony plea to a
magistrate judge, which is consented to by the defendant (as Carlucci did in this case), does not
impinge on a defendant’s constitutional right under Article III to have a district judge preside at
all critical stages of a felony trial. Ciapponi, 77 F.3d at 1250-51. Accordingly, section
2255(f)(3) is inapplicable in this case.
Section 2255(f)(4)
Moreover, Carlucci’s discovery of facts surrounding his § 2255 motion does not save the
untimeliness of his motion. The majority of Carlucci’s claims appear to be premised on the

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alleged breach, by the government, of the plea and proffer agreements between Carlucci and the
government in the underlying criminal case. Additionally, Carlucci claims that the government
improperly used information from the underlying criminal case (prosecuted in Utah) to convict
him of money-laundering, conspiracy to defraud the United States, and willful filing of false tax
returns, in a subsequent Arizona prosecution.
Section 2255(f)(4) sets forth an objective test, providing that the limitation period starts
when a person exercising reasonable diligence should have known of the facts supporting the
claim. United States v. Denny, 694 F.3d 1185, 1189 (10th Cir. 2012).
Applying this objective standard to the facts of this case, it is apparent that Carlucci knew
of the facts supporting his claims as early as August 11, 2010. Carlucci was indicted in the
Arizona case on April 8, 2010. Thereafter, on August 11, 2010, Carlucci moved to dismiss the
indictment in the Arizona case based on, among other things, the government’s alleged breach of
the plea and proffer agreements in the Utah case and the government’s improper use of evidence
from the Utah case in the Arizona prosecution. See United States v. Gino Carlucci & Wayne A.
Mounts, Case No. 2:10cr00464-KHV, Dtk. No. 52, at 3-6 & 8-10. The same complaints that
formed the basis of his motion to dismiss the indictment now form the basis of Grounds One
through Three of Carlucci’s § 2255 motion. Thus, Carlucci was aware of the claims underlying
his § 2255 motion as early as August 2010, and likely even earlier.
At the very least, Carlucci was indisputably aware of information from the Utah case
being used against him in the Arizona case on July 25, 2011, when the Arizona jury returned a
guilty verdict against him. Using July 25, 2011 as an operative date, Carlucci was required to

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file his § 2255 motion by July 25, 2012, and his filing date of December 22, 2014 is well-beyond
that deadline.
Equitable Tolling
Finally, Carlucci has not provided the court with any evidence that would support
equitable tolling of the one-year time limit. Equitable tolling of the one-year limitation period
under § 2255 is available when the movant demonstrates: (1) that he has diligently pursued his
claims; and (2) that his failure to timely file was caused by “extraordinary circumstances.”
United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008). Expanding on this, the United
States Court of Appeals for the Tenth Circuit has explained that equitable tolling should be
applied in this context only “in rare and exceptional circumstances,” including: (a) “when a
prisoner is actually innocent;” (b) “when an adversary’s conduct – or other uncontrollable
circumstance – prevents a prisoner from timely filing;” or (c) “when a prisoner actively pursues
judicial remedies but files a defective pleading during the statutory period.” Gibson v. Klinger,
232 F.3d 799 (10th Cir. 1998). “[A]n inmate bears a strong burden to show facts to support his
claim of extraordinary circumstances and due diligence.” Yang v. Archuleta, 525 F.3d 925, 928
(10th Cir. 2008).
Carlucci has not presented facts sufficient to satisfy the “strong burden” of showing
extraordinary circumstances and due diligence. As explained above, Carlucci first learned about
the claims underlying his § 2255 motion as early as August 11, 2010 (when he moved to dismiss
the Indictment in the Arizona case based on claims that the government breached the plea
agreement in the Utah case) and no later than July 25, 2011 (when the jury returned a guilty

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verdict in the Arizona case). In the time that elapsed from July 25, 2011 until December 22,
2014, when Carlucci filed his § 2255 motion in this case, the record is lacking in facts that would
show diligent efforts by Carlucci to pursue his remedies. Indeed, Carlucci’s only effort to inform
the court of his present allegations occurred on December 13, 2013, when Carlucci filed a
motion in the underlying criminal case, in Utah, seeking appointment of counsel on the grounds
that he was “currently incarcerated due to the breach of the plea agreement and prosecutorial
misconduct.” Criminal Case, No. 2:14CR765 - DB (D. Utah) (Dkt. No. 67). On February 5,
2014, the court denied the motion to appoint counsel noting: “there is no matter currently
pending before the Court for which the Court may appoint counsel,” and in so doing, put
defendant on notice that he needed to file something to establish a matter for which counsel
could be appointed. Id. (Dkt. No. 68.) Carlucci has simply provided no explanation as to why
he delayed until December 22, 2014 to file his § 2255 motion.
CONCLUSION
For the reasons explained above, Carlucci’s § 2255 Motion is dismissed as untimely.1
DATED this 9th day of October, 2015.

_________________________________
Dee Benson
United States District Judge

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On October 8, 2015, Carlucci filed a Motion for Leave of Court to Conduct Discovery.
(Dkt. No. 10.) Having concluded that Carlucci’s § 2255 motion is time-barred, and therefore
dismissed, Carlucci’s motion to conduct discovery is moot.
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