United States District Court, D. Kansas
MEMORANDUM & ORDER
W. Lungstrum United States District Judge.
2013, the court sentenced Tiffany D. Woosley to a term of 60
months based on her plea of guilty to a violation of 18
U.S.C. § 922(g)(1), to be served consecutively to a
120-month mandatory minimum sentence she received in a
separately-numbered case (Case No. 11-40046-02) for
conspiracy to distribute methamphetamine. This matter is
before the court on Ms. Woosley's pro se motion pursuant
to 28 U.S.C. § 2255 in which Ms. Woosley contends that
she should have been awarded a “minor or minimal
role” reduction pursuant to U.S.S.G. § 3B1.2
because she was substantially less culpable that the
co-defendants in her conspiracy case and that, pursuant to
Amendment 794, that reduction should now be applied to her
sentence. In support of her argument, Ms. Woosley
relies exclusively on the Ninth Circuit's opinion in
United States v. Quintero-Leyva, 823 F.3d 519 (9th
Cir. 2016). Because Ms. Woosley's motion is barred by the
statute of limitations, it is dismissed as untimely.
Section 2255 provides a one-year period of limitation which
runs from the latest of-
(1) the date on which the judgment of conviction becomes
(2) 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
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f). In Ms. Woosley's conspiracy
case, judgment was entered on May 2, 2013. Ms. Woosley did
not appeal the judgment of conviction such that it was final
on May 16, 2013. See United States v. Prows, 448
F.3d 1223, 1227-28 (10th Cir. 2006) (if defendant does not
file direct appeal, conviction becomes final upon expiration
of time in which to take direct criminal appeal); Fed. R.
App. P. 4(b) (defendant must file appeal within 14 days of
entry of judgment). Therefore, Ms. Woosley had until May 16,
2014 to file a § 2255 petition with respect to that
filed her petition on March 30, 2017, nearly three years
after the statutory deadline and there is no applicable
provision in § 2255(f) that might work to extend the
filing deadline. See United States v. Harrison, ___
Fed.Appx. ___, 2017 WL 710426, at *2 (10th Cir. Feb. 23,
2017) (Amendment 794 is not a “fact” for purposes
of § 2255(f)(4)). Moreover, Ms. Woosley has not alleged
a basis for equitable tolling. She does not explain why she
did not file an appeal or otherwise pursue the mitigating
role adjustment or why it took her nearly 18 months after the
effective date of Amendment 794 to file her motion.
Accordingly, defendant has not shown that she is entitled to
equitable tolling of the limitations period. See Fleming
v. Evans, 481 F.3d 1249, 1257 (10th Cir. 2007)
(petitioner must show that she acted with reasonable
diligence); Gibson v. Klinger, 232 F.3d 799, 807
(10th Cir. 2000) (petitioner must show that after learning
pertinent facts, he diligently pursued federal habeas claim).
foregoing reasons, Ms. Woosley's § 2255 petition is
barred by the statute of limitations and must be dismissed as
untimely. Effective December 1, 2009, Rule 11 of the
Rules Governing Section 2255 Proceedings states that the
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant. “A
certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this standard, the petitioner must demonstrate that
“reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” See Saiz v. Ortiz, 393 F.3d 1166, 1171
n.3 (10th Cir. 2004) (quoting Tennard v. Dretke, 542
U.S. 274, 282 (2004)). In addition, when the court's
ruling is based on procedural grounds, a petitioner must
demonstrate that “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Because it is clear
that Ms. Woosley's petition is untimely, the court denies
a certificate of appealability.
IS THEREFORE ORDERED BY THE COURT THAT Ms.
Woosley's motion to vacate under 28 U.S.C. §
2255(doc. 30) is dismissed.
IS SO ORDERED.