Opinion
No. 2:99cr517
January 28, 2003
ORDER
This matter is before the Court on Defendant's Motion for Clarification/Amendment of Sentence. Defendant does not file this action as a separate civil suit, but rather files the motion using the same criminal case number under which he was sentenced. Because the court does not have authority to modify the sentence in this posture ( See Fed.R.Crim.P. 35 ), the court views this motion as a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.
Rule 35 allows the court to correct a sentence under limited circumstances: upon remand, upon motion by the government within a year, or within 7 days of the imposition of the sentence.
Defendant alleges that he has not been given credit for the time he was in the Marshall's custody prior to the imposition of his sentence (which amounts to approximately 9 1/2 months) and that his state and federal sentences are running consecutively rather than concurrently. Having exhausted the administrative remedies within the prison system, he asks that his sentence be clarified to include credit for time served. Alternatively, he asks for relief under 5 U.S.C. § 701-706, which is the Administrative Procedure Act allowing for judicial review of administrative decisions.
Section 2255 of 18 U.S.C. provides a 1-year limitations period which runs, in petitioner's case from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 18 U.S.C. § 2255 (4). It appears from the "Sentence Monitoring Computation Data" attached to petitioner's motion, that his sentence was recomputed on August 14, 2001, the date of his actual state parole. As a result of the newly computed data, petitioner's data indicated his sentence began to run from the sentencing date, rather than the date of his arrest. Petitioner does not allege the date he became aware of the change, but began his administrative appeal process on September 11, 2001.
The one-year limitations period began to run on the date which the facts supporting the claim could have been discovered, which was August 14, 2001 — the date of the recalculation. Which means the period for filing a § 2255 motion expired on August 14, 2002. Petitioner's motion was filed on December 30, 2002. Petitioner pursued his administrative appeals process until April 19, 2002 and could have filed this motion before the statute of limitations period was up in August 2002.
Petitioner has not shown extraordinary circumstances necessary to toll the limitations period. See Woodward v. Williams, 263 F.3d 1135 (10th Cir. 2001) (treating habeas corpus petitions and § 2255 petitions similarly and stating ". . . statute of limitations is subject to equitable tolling only when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.") (citing Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) cert. denied, 531 U.S. 1194, 121 S.Ct. 1195, (2001)).
The alternative remedy petitioner seeks is under the Administrative Procedure Act, which provides for judicial review of agency action. However, because prior, adequate, and exclusive opportunity for judicial review is provided by law — specifically through 28 U.S.C. § 2255 — petitioner is not entitled to review under the Administrative Procedure Act. 5 U.S.C. § 703.
Accordingly, petitioner's motion is hereby DISMISSED.
IT IS SO ORDERED.