Lambourne v. U.S.

Full title: MICHAEL LAMBOURNE, Petitioner, vs. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, D. Utah, Central Division

Date published: May 15, 2003

Case No. 2:02CV1181DAK (D. Utah May. 15, 2003)

Opinion

Case No. 2:02CV1181DAK

May 15, 2003

ORDER

DALE A. KIMBALL, United States District Judge

This matter is before the court on Petitioner Michael Lambourne's Motion to Reconsider the Order issued by this court on February 19, 2003 denying his motion and supplemental motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence. Petitioner asks this court for an evidentiary hearing on the motion, asserting that the Affidavit of Petitioner's father raises a factual issue as to the date on which the facts supporting the claims could have been discovered through the exercise of due diligence.

The Affidavit states that Petitioner's father did not feel his son "had adequate information on the date of sentencing [in the matter before Judge Stewart] from his attorney on many important issues," that Petitioner's father did not have time to discuss sentencing issues with his son's attorney on the date of sentencing before Judge Stewart, and that Petitioner's father has spoken to his son and he confirms that his attorney did not talk to him about how to exercise the option of using a sentencing departure to the maximum benefit in relation to the pending matter before Judge Stewart and the prior criminal matter before this court.

The information contained in the Affidavit does not raise an issue as to when the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. Petitioner filed a dismissal of his appeal to the Tenth Circuit based on negotiations with respect to sentencing issues in the Judge Stewart matter and the appeal was dismissed June 18, 2001. The court's prior order found that the one-year statute of limitation under § 2255 began to run on September 16, 2001, ninety days after the dismissal of the appeal. Petitioner has not provided any new evidence in his Motion to Reconsider that facts relevant to the two criminal matters could not have been known at the time the appeal was dismissed or within ninety days of the dismissal. The information provided is not sufficient to hold an evidentiary hearing or reverse this court's prior order.

For the above reasons, Petitioner Michael Lambourne's Motion to Reconsider the court's February 19, 2003 Order is DENIED.