Opinion
No. CIV-04-1382 JC/RHS, CR-01-738 JC.
January 4, 2006
ORDER
This matter is before the Court on Plaintiff's request (CV Doc. 8; CR Doc. 111) (hereinafter the "motion") to clarify the order of April 21, 2005. The April 21 order directed Plaintiff to answer certain of Defendant's claims of ineffective assistance of counsel. Plaintiff's motion asks the Court to dismiss certain of Defendant's claims and to specify which of Defendant's claims must be answered. On further review of Defendant's claims, the motion will be granted in part.
In his § 2255 motion, Defendant asserted five claims of constitutional violations in his criminal proceeding. He "reserved" an additional claim of ineffective assistance of counsel "for raising if prosecution makes claims concerning this claim." In a memorandum in support of his § 2255 motion, Defendant set out the factual bases of his five constitutional claims. And in a declaration attached to the memorandum, he also alleged that counsel failed to file a petition for writ of certiorari in the United States Supreme Court, respond to the government's appellate response brief, investigate the plastic baggies that were used in drug production, or object to trial testimony regarding drug quantity. Later, on February 7, 2005, Defendant submitted a response to an order to show cause, asserting thirteen instances of ineffective assistance of counsel (the "supplemental claims").
The Court entered an order on March 9, 2005, dismissing Defendant's claims in his § 2255 motion. In another order entered on April 21, the Court directed Plaintiff to answer the supplemental claims. Plaintiff then filed its motion to clarify. Plaintiff asks the Court to dismiss the supplemental claims as barred by the statute of limitations and require that Plaintiff answer only the allegations in the memorandum in support of the § 2255 motion.
Plaintiff argues that the supplemental claims should be dismissed as time-barred under the one-year period of limitations in § 2255. Defendant's conviction was affirmed by the Court of Appeals for the Tenth Circuit on September 17, 2003. He did not file a petition for writ of certiorari, and thus his conviction became final ninety days later on December 16, 2003. See United States v. Burch, 202 F.3d 1274, 1279 (10th Cir. 2000) (ruling that an appealed criminal conviction is not final until expiration of the 90-day deadline for filing petition for writ of certiorari). Although Defendant filed his § 2255 motion within the one-year limitation period on December 7, 2004, he filed his response on February 7, 2005, fifty-three days after expiration of the limitation period.
As indicated by these dates, the supplemental claims were untimely filed. These claims must be dismissed unless they relate back to the § 2255 motion, see United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000), or there is a basis for equitable tolling of the limitation period, see United States v. Cordova, No. 99-1306, 1999 WL 1136759, at **1 (10th Cir. Dec 13, 1999). On further review of Defendant's response, the Court finds that supplemental claims 1-7 and 9 relate back to the original § 2255 motion and/or memorandum. Supplemental claims 8, 10, and 11 will be dismissed are mere argument. The Court will dismiss supplemental claims 12 and 13 as untimely because they do not relate back and Defendant presents no grounds for equitable tolling.
IT IS THEREFORE ORDERED that Plaintiff's request to clarify (CV Doc. 8; CR Doc. 111) the order of April 21, 2005, is GRANTED IN PART and DENIED IN PART; specifically, the order of April 21, 2005, is AMENDED as follows; Defendant's supplemental claims 8, 10, 11, 12, and 13 in the response (CV Doc. 4; CR Doc. 106) filed February 7, 2005, are DISMISSED with prejudice;
IT IS FURTHER ORDERED that, within twenty (20) days of entry of this Order, the United States answer the allegations of ineffective assistance of counsel set forth in Defendant's memorandum and declaration (CV Doc. 2; CR Doc. 104) in support of his § 2255 motion; and the government's answer will also address the allegations in supplemental claims 1-7 and 9 in Defendant's February 7 response.