United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
December 15, 2015, the Court sentenced defendant to 162
months in prison. This matter is before the Court on
defendant's Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, Or Correct Sentence By A Person In Federal
Custody (Doc. #2033) filed May 22, 2017. On May 23,
2017, the Court directed the parties to file briefs on the
limited issue of potential procedural bars to defendant's
motion. Memorandum And Order (Doc. #2035); see
United States v. Allen, 16 F.3d 377, 378-79 (10th Cir.
1994) (court may raise and enforce procedural bar sua
sponte if doing so furthers interests of judicial
efficiency, conservation of scarce judicial resources and
orderly and prompt administration of justice). In particular,
the Court directed the parties to address whether
defendant's motion is barred as untimely. On June 8,
2017, the government filed a brief on the issue. See
Government's Response To Court's Order (Doc.
#2037). Defendant filed a reply and also requests copies of
documents so that he may file a memorandum in support of his
motion to vacate. See Objection To Government's
Response (Doc. #2045) filed July 3, 2017; Motion To
Compel Discovery In Civil Proceeding Pursuant To Fed.R.Civ.P.
26 (Doc. #2039) filed June 16, 2017 and Motion For
Order To Produce Redacted Copies Of Sealed Documents
(Doc. #2032) filed May 22, 2017. For reasons stated below,
the Court overrules defendant's requests for copies,
CIVIL ACTION No. 17-2295-KHV overrules defendant's motion
to vacate and denies a certificate of appealability.
October 3, 2012, a grand jury charged Eduardo Perez-Alcala
and some 50 other defendants with conspiracy to manufacture,
to possess with intent to distribute and to distribute 280
grams or more of cocaine base and to possess with intent to
distribute and to distribute five kilograms or more of a
mixture and substance containing cocaine. See Second
Superseding Indictment (Doc. #402), Count 1. The
indictment also charged defendant with conspiracy to commit
money laundering. Id., Count 2. On May 22, 2013,
defendant pled guilty to both counts. See Plea Agreement
(Doc. #637). Defendant had a total offense level of 41 with a
criminal history category I for a guideline range of 324 to
405 months in prison. See Presentence Investigation
Report (Doc. #1810) filed August 11, 2015, ¶ 170.
On December 15, 2015, the Court sentenced defendant to 162
months in prison on Counts 1 and 2, with the terms to be
served concurrently. Defendant did not appeal. Michael M.
Jackson represented defendant throughout the proceedings.
October 20, 2016, defendant asked the Court to unseal the
plea agreement and sentencing transcript so that he could
litigate his “appeal.” Motion To Unseal
Documents, Plea Agreement [And] Sentencing Transcript
(Doc. #1983). The Court overruled defendant's request to
unseal because (1) he had not filed an appeal and any appeal
at that stage would have been untimely, (2) he did not
specifically explain how the interests of the parties or the
public had changed and (3) he had not shown a particularized
need to unseal any documents so that he could litigate an
appeal or any post-conviction motion. See Order
(Doc. #2007) filed January 10, 2017 at 1-2.
22, 2017, defendant filed a pro se motion to vacate his
sentence under 28 U.S.C. § 2255. Defendant asserts that
Jackson provided ineffective assistance (1) at the pretrial
motions stage, (2) during plea negotiations, (3) at
sentencing, when he did not properly object to the
enhancement of defendant's sentence under Section 3B1.2
of the United States Sentencing Guidelines and (4) after
sentencing, when he did not consult defendant about an appeal
or file an appeal as requested. Motion Under 28 U.S.C.
§ 2255 (Doc. #2033) at 3-7.
standard of review of Section 2255 petitions is quite
stringent. The Court presumes that the proceedings which led
to defendant's conviction were correct. See Klein v.
United States, 880 F.2d 250, 253 (10th Cir. 1989).
government asserts that defendant's claim is barred as
untimely. See Government's Response To Court's
Order (Doc. #2037) filed June 8, 2017 at 2-5. 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). If defendant does not directly
appeal his conviction or sentence, the conviction becomes
final upon the expiration of the time to take a direct
criminal appeal. United States v. Prows, 448 F.3d
1223, 1227-28 (10th Cir. 2006). Here, on December 21, 2015,
the Court entered judgment. See Judgment In A Criminal
Case (Doc. #1919). Under Rule 4(b) of the Federal Rules
of Appellate Procedure, defendant's judgment became final
14 days later, on January 4, 2016. Therefore, under the