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United States v. Soto-Arreola

United States District Court, D. Kansas

April 27, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
RIGOBERTO SOTO-ARREOLA, Defendant.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

This matter is before the Court on various motions related to defendant's Motion To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody Pursuant To 28 U.S.C. § 2255 (Doc. #30) filed November 19, 2012.

I. Motion To Reconsider And Motion To Extend Time (Doc. #35)

On December 5, 2012, the Court sustained in part defendant's request for certain documents, but overruled his request for a copy of the transcripts of sentencing and change of plea hearings. See Order (Doc. #34) at 2-3. Defendant states that he needs the transcripts to help prepare the memorandum and affidavit in support of his Section 2255 motion. Doc. #35 at 3-6. Because the court reporter prepared a transcript of sentencing for defendant's direct appeal and a transcript of the change of plea hearing may be helpful in evaluating defendant's claim that he did not voluntarily and knowingly enter his plea, the Court sustains defendant's motion. See 28 U.S.C. § 2250 (United States shall furnish without cost to indigent prisoner such documents as judge may require). The Clerk shall send defendant a copy of the Transcript Of Sentencing (Doc. #25). In addition, within five days after the court reporter files the transcript of the change of plea hearing, the Clerk shall send defendant a copy of the transcript.

Defendant seeks an extension of time so that he may review the transcripts in preparing his memorandum and affidavit in support of his Section 2255 motion. The Court grants defendant's request. On or before June 15, 2015, defendant may file a memorandum and affidavit in support of his Motion To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody Pursuant To 28 U.S.C. § 2255 (Doc. #30).[1] On or before July 15, 2015, the government shall file a response to defendant's motion. On or before August 24, 2015, defendant may file a reply brief.

II. Motion For Copies (Doc. #36)

Defendant seeks a copy of his Section 2255 motion because he no longer has one. The Court sustains defendant's request and directs the Clerk to send defendant a copy of the docket sheet and defendant's Motion To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody Pursuant To 28 U.S.C. § 2255 (Doc. #30).

III. Motions To Amend Section 2255 Motion (Doc. ##36 and 37)

Defendant asks to supplement his Section 2255 motion to add new claims. See Doc. #36 at 1-2; Doc. #37 at 1-2. Defendant apparently seeks to add claims that counsel was ineffective because (1) he waived a detention hearing, (2) he did not advise defendant about the risk of deportation arising from a guilty plea and (3) he did not object to certain information in the presentence investigation report.[2] See Doc. #36 at 1-2; Doc. #37 at 1-2.

Section 2255 provides a one-year period of limitation which ordinarily runs from the date on which the judgment of conviction becomes final.[3] Rule 15, Fed. R. Civ. P., governs a motion to amend a Section 2255 petition if it is made before the one-year limitation period has expired. United States v. Ohiri , 133 F.Appx. 555, 559 (10th Cir. 2005). Here, defendant filed his motion to amend after the one-year deadline.[4] An untimely amendment to a Section 2255 motion may relate back to the date of the original motion if the original motion was timely filed and the proposed amendment does not seek to add a new claim or insert a new theory. United States v. Espinoza-Saenz , 235 F.3d 501, 505 (10th Cir. 2000).

Here, the Court denies leave to amend because defendant seeks to insert new theories which are not part of the single claim in his original motion. See id. (rejecting new claims of ineffective assistance filed two months after deadline in 28 U.S.C. § 2255).[5]

IT IS THEREFORE ORDERED that defendant's Motion For Reconsideration Of Denial Of Motion For Copies Of Change Of Plea And Sentencing Hearing Transcripts And Motion For Expansion Of Time To Submit Memorandum And Sworn Affidavit In Support Of Motion Pursuant To 28 U.S.C. § 2255 (Doc. #35) filed February 20, 2013 be and hereby is SUSTAINED. The Court directs the Clerk to send defendant a copy of the Transcript Of Sentencing (Doc. #25). In addition, within five days after the court reporter files the transcript of the change of plea hearing, the Clerk shall send defendant a copy of that transcript. On or before June 15, 2015, defendant may file a memorandum and affidavit in support of his Motion To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody Pursuant To 28 U.S.C. § 2255 (Doc. #30). On or before July 15, 2015, the government shall file a response to defendant's motion. On or before August 24, 2015, defendant may file a reply brief.

IT IS FURTHER ORDERED that defendant's letter (Doc. #36) filed February 13, 2015, which the Court construes as a motion for copies and to amend his Section 2255 motion, be and hereby is SUSTAINED in part. The Court sustains defendant's request for copies. The Court directs the Clerk to send defendant a copy of the docket sheet and defendant's Motion To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody Pursuant To 28 U.S.C. § 2255 (Doc. #30). The Court overrules defendant's request to amend his Section 2255 motion.

IT IS FURTHER ORDERED that defendant's Motion Pursuant To Rule 36 (Doc. #37) filed February 23, 2015, which the Court construes as a motion to amend his Section 2255 motion, be and hereby is OVERRULED.


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