Opinion
Criminal No. 99-102-RI
May 31, 2002
Michael W. Mosman, United States Attorney, Gary Y. Sussman, Assistant United States Attorney, Portland, Oregon. Attorneys for United States of America
Anthony Martin Howard, Reg. No. 63334-065 Federal Correctional Institution Post Office Box, Safford, Arizona, Attorney for Defendant
OPINION AND ORDER
Before the court is the motion, under 28 U.S.C. § 2255, to vacate, set aside, or correct sentence (#31) by defendant Anthony Martin Howard. For the reasons set forth below, I deny the motion.
PROCEDURAL BACKGROUND
On May 3, 1999, defendant pled guilty to three counts of bank robbery. A presentence report was ordered and prepared. After recommending a three-level reduction for acceptance of responsibility, the report identified a total offense level of 22 and a criminal history category of II, resulting in a sentencing guideline range of 46 to 57 months. Defendant did not object to the guideline calculations in the presentence report, although he disagreed with the sentencing recommendation which accompanied it.
The sentencing hearing was held on September 10, 1999. Defendant sought a downward departure based on a combination of factors, including his mental condition at the time of the offense and his post-offense rehabilitation. The court declined to depart and imposed concurrent sentences of 46 months imprisonment on each count, followed by a three-year term of supervised release. The judgment was entered on September 13, 1999. Defendant did not file a notice of appeal.
As part of his plea agreement with the government, defendant waived his right to appeal both his conviction and sentence, so long as the sentence did not exceed the statutory maximum penalty and did not represent an upward departure from the applicable guideline range.
In the current motion before the court, defendant does not claim that the court lacked jurisdiction and he does not allege that his conviction or sentence are illegal or unconstitutional. To the contrary, he states that he is "Satisfied with [his] Sentence" and is "Appreciative." (Defendant's Motion, p. 5). However, fearing that four months in a halfway house upon his release will not be enough time to allow him to secure housing or establish community ties, defendant seeks a modification of his sentence to 36 months imprisonment and 12 months of home confinement. He also claims that the Bureau of Prisons has not properly given him credit for timed served.
LEGAL STANDARDS
1028 U.S.C. § 2255 provides, in part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Under Section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section `[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255) (emphasis in the original). The court may deny a hearing if the movant's allegations, viewed against the record fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998) Mere conclusory statements in a § 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1982).
DISCUSSION
There is no need for an evidentiary hearing to decide this motion given that it is fatal by flawed procedurally.
I. Request for Modification of Sentence
The government argues that defendant's motion is barred by the one-year statute of limitations that applies to motions under Section 2255. In this case, the statute began to run on the date on which the judgment of conviction became final. See Section 2255 ("[t]he limitation period shall run from the latest of . . . the date on which the judgment of conviction becomes final;"). As noted above, the written judgment for defendant's conviction was filed on September 13, 1999. Because no appeal was filed, the judgment of conviction became final on September 23, 1999 upon the expiration of the ten-day period with in which defendant could have filed a notice of appeal. Accordingly, defendant's Section 2255 motion would only be timely if filed no later than September 23, 2000. Because defendant's motion was not filed until almost a year after such date, it is untimely.
In his reply brief, defendant argues that a different provision of Section 2255 governs when the one-year statute of limitations began to run (i.e., "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;"). Defendant has described no such impediment.
Even if defendant's motion were timely, I note that he does not allege that his sentencing was imposed in error as contemplated by Section 2255.
II. Complaint Regarding Credit for Time Served
The government argues that defendant's complaint that the Bureau of Prisons has not properly given him credit for time served must be brought as a motion for relief under 28 U.S.C. § 2241 (which must be filed in the district in which a defendant is confined). I agreed, given that such a complaint challenges the execution of a defendant's sentence rather than its imposition. As such, defendant's second basis for his motion is also procedurally infirm.
CONCLUSION
The motion, under 28 U.S.C. § 2255, to vacate, set aside, or correct sentence (#31) by defendant Anthony Martin Howard is DENIED. All other pending motions are denied as moot.