Opinion
Case No. CR-13-263-R
04-05-2017
UNITED STATES OF AMERICA, Plaintiff, v. ENRIQUE MARTINEZ-GONZALEZ, Defendants.
ORDER
Before the Court is Defendant's Motion to Modify and Reduce Sentence. [Doc. 35]. Defendant contends that the fifty-seven-month sentence imposed by the Court on January 29, 2014, is improper because the Court erroneously characterized his prior conviction for a drug-related offense as "drug trafficking" and applied a 16-point enhancement in calculating his sentence. The Court explained in its earlier Order that Defendant does not cite to any authority that would permit the Court to reduce his sentence and relief appears to be foreclosed by the applicable one-year limitations period. [Doc. 36]. The Court also notified Defendant that unless he indicated a desire to withdraw the motion, the Court would convert his Motion to Modify and Reduce Sentence into a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. Defendant has taken no action since the Court's Order.
See Doc. 36 (reasoning that the Court would be forced to convert Defendant's Motion into one for habeas relief because it did "not raise issues that implicate the Court's authority to modify a sentence pursuant to 18 U.S.C. § 3582.") --------
Defendant's Motion is therefore converted into a petition for habeas relief under 28 U.S.C. § 2255 and denied as untimely. "Typically, [motions under § 2255] must be filed within one-year of the 'date on which the judgment of conviction becomes final.'" DeYoung v. United States, 2013 WL 4434244, at *2 (D. Utah Aug. 14, 2013) (quoting § 2255(f)(1)). "When a defendant appeals his conviction, the judgment does not become final until 'the Supreme Court affirms it on direct review, denies certiorari, or (in the absence of a certiorari petition) the time for filing a certiorari petition expires.'" Id. (quoting United States v. Sandoval, 371 Fed. Appx. 945, 948 (10th Cir. 2010)). "The Supreme Court has specified that a writ of certiorari must be filed within 90 days after 'entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate.'" Id. (citing Supreme Court Rule 13(1), (3)).
Here, Defendant appealed his conviction, and the Tenth Circuit affirmed on July 15, 2014. Because Plaintiff did not file a certiorari petition, the one-year limitations period began when his time for filing a certiorari petition expired 90 days later—October 13, 2014. Plaintiff thus had one year from October 13, 2014 to file his motion under 28 U.S.C. § 2255. His motion, filed nearly two years later on September 23, 2016, was thus untimely. Consequently, Plaintiff's Motion to Modify and Reduce Sentence, converted into one for relief under 28 U.S.C. § 2255, is DENIED.
Further, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the undersigned denies Petitioner a Certificate of Appealability. Where a habeas petition is denied on procedural grounds, Petitioner is entitled to a COA only if he demonstrates 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." Stack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Petitioner has not made this showing and is therefore not entitled to a COA.
IT IS SO ORDERED this 5th day of April 2017.
/s/ _________
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE