Ketelsen v. United States of America

Filing 4

ORDER DISMISSING CASE signed by Judge J.P. Stadtmueller on 1/12/2017 DENYING 1 Petitioner's MOTION to Vacate, Set Aside or Correct Sentence (2255). Action DISMISSED with prejudice. Certificate of Appealability DENIED. (cc: all counsel, via mail to Amy Ketelsen at Greenville FCI)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AMY KETELSEN,
Petitioner,
v.

Case No. 16-CV-1460-JPS
Criminal Case No. 14-CR-112–7-JPS

UNITED STATES OF AMERICA,
Respondent.

ORDER

On November 1, 2016, petitioner Amy Ketelsen (“Ketelsen”) filed a pro
se motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C.
§ 2255. (Docket #1). She argues that her sentence should be reduced on the
basis of her playing a “minor role” in her underlying conviction for
Conspiracy to Import Methylone Into the United States and Distribute and
Possess with Intent to Distribute Methylone, in violation of 21 U.S.C. §
841(a)(1), 21 U.S.C. §§ 841(b)(1)(C), and 846. (Docket #1). This “minor role”
adjustment is based on Amendment 794 to the United States Sentencing
Guidelines. Id. at 6.
Ketelsen’s motion is untimely. Federal inmates such as Ketelsen may
attack the validity of their federal sentences by filing Section 2255 motions
within a one-year limitations period. This period begins to 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.”
28 U.S.C. § 2255(f). Ketelsen took no appeal from her criminal judgment, and
so it became final on June 11, 2015. See Fed. R. App. P. 4(b)(1)(A). Ketelsen
was required, then, to file the instant motion not later than June 11, 2016, but
did not do so until November 1, 2016.
Ketelsen asserts that her motion was filed within one year of the
issuance of Amendment 794, which became effective on November 1, 2015.
She believes that this is a new “fact” rendering her motion timely under
Section 2255(f)(4). However, an amendment to a sentencing guideline is not
a “fact” that triggers Section 2255(f)(4). U.S. v. Andrade, No. 1:13-CR-427, 2017
WL 35498 *2 (E.D. Cal. Jan. 3, 2017); U.S. v. Bazaldua, Nos. 06-CR-100 and 16CV-2479, 2016 WL 5858634 *1 (D. Minn. Oct. 5, 2016); Altman v. U.S., Nos.
C16-3097 and CR12-3010, 2016 WL 5219599 *2 (N.D. Iowa Sept. 21, 2016);
Perez-Rodriguez v. U.S., Nos. 3:16-CV-2341-L and 3:13-CR-440-L, 2016 WL
5875027 *1-2 (N.D. Tex. Aug. 16, 2016); see also Lo v. Endicott, 506 F.3d 572,
574-76 (7th Cir. 2007) (in reviewing a statute of limitations paralleling Section
2255(f), the court found that a change in law does not constitute a change of
“fact”). Ketelsen has thus failed to establish that her motion was presented
within the applicable time limit.
As noted in the Court’s screening order, only two exceptions exist
which could change this result. However, Ketelsen makes no reference to the
first, the “actual innocence” gateway. See (Docket #1). Even generously
assuming that her motion invokes the second, equitable tolling, the Court
sees no reason to apply that rule here. Id. at 6. Equitable tolling is “reserved
for extraordinary circumstances far beyond the litigant’s control that
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prevented timely filing.” Socha v. Boughton (Socha II), 763 F.3d 674, 684 (7th
Cir. 2014) (quoting Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004)). To
be entitled to equitable tolling, a petitioner bears the burden of establishing:
“(1) that [s]he has been pursuing h[er] rights diligently, and (2) that some
extraordinary circumstance stood in h[er] way and prevented timely filing.”
Socha II, 763 F.3d at 683–84 (citing Holland v. Florida, 560 U.S. 631, 649 (2010);
Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008)) (internal quotation marks
omitted). Ketelsen’s only reference to “diligent” efforts is a March 2016 letter
asking that the gun enhancement be removed from her guideline calculation.
U.S. v. Ketelsen, 14-CR-112-7-JPS (E.D. Wis.) (Docket #404). This has nothing
to do with the instant motion. Further, other than the argument regarding
Amendment 794, which the Court rejected, Ketelsen asserts no extraordinary
circumstance preventing her from timely filing. The Court’s finding of
untimeliness is, therefore, undisturbed by any available exception.
Finally, under Rule 11(a) of the Rules Governing Section 2255 Cases,
“the district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Ketelsen must make a “substantial
showing of the denial of a constitutional right” by establishing that
“reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations omitted).
Further, when the Court has denied relief on procedural grounds, the
petitioner must show that jurists of reason would find it debatable both that
the “petition states a valid claim of the denial of a constitutional right” and
that “the district court was correct in its procedural ruling.” Slack v. McDaniel,
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529 U.S. 473, 484 (2000). Because no reasonable jurists would debate whether
the petition should have been resolved in a different manner, the Court is
compelled to deny a certificate of appealability as to Ketelsen’s petition.
Finally, the Court closes with some information about the actions that
Ketelsen may take if she wishes to challenge the Court’s resolution of this
case. This order and the judgment to follow are final. A dissatisfied party
may appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30 days of the entry
of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline if
a party timely requests an extension and shows good cause or excusable
neglect for not being able to meet the 30-day deadline. See Fed. R. App. P.
4(a)(5)(A). Moreover, under certain circumstances, a party may ask this
Court to alter or amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of Civil Procedure
60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed
within 28 days of the entry of judgment. The Court cannot extend this
deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The court cannot extend this
deadline. See Federal Rule of Civil Procedure 6(b)(2). A party is expected to
closely review all applicable rules and determine what, if any, further action
is appropriate in a case.
Accordingly,
IT IS ORDERED that the motion to vacate, set aside, or correct
petitioner’s sentence (Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice; and
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IT IS FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 12th day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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