United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
October 28, 2014, defendant pled guilty to armed bank robbery
and knowingly and intentionally brandishing of a firearm
during and in relation to a crime of violence. Plea
Agreement (Doc. #66), ¶ 1. On January 15, 2015, the
Court sentenced defendant to 114 months in prison.
Judgment In A Criminal Case (Doc. #87). This matter
is before the Court on defendant's pro se Motion
Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or
Correct Sentence By A Person In Federal Custody (Doc.
#100) filed October 10, 2017. On October 25, 2017, the Court
directed the parties to file briefs concerning potential
procedural bars to defendant's motion. See Memorandum
And Order (Doc. #102). For reasons stated below, the
Court overrules defendant's motion and denies a
certificate of appealability.
March 19, 2014, a grand jury returned an indictment which
charged defendant with armed bank robbery in violation of 18
U.S.C. §§ 2113(a), 2113(d) and 2 (Count 1) and
aiding and abetting, knowingly and intentionally brandishing
a firearm during and in relation to a crime of violence in
violation of 18 U.S.C. §§ 924(c) and 2 (Count 2).
Indictment (Doc. #20). On October 28, 2014,
defendant pled guilty to Counts 1 and 2. Plea
Agreement (Doc. #66), ¶ 1. In exchange for
defendant's guilty plea, the government agreed to
recommend a sentence at the low end of his applicable
guideline range, a two-level reduction for acceptance of
responsibility and a one-level reduction for entering an
early plea. Id., ¶ 4. The Court accepted the
government's recommendations and sentenced defendant to
114 months in prison - the low end of his sentencing range.
Judgment (Doc. #87); see also Presentence
Investigation Report (Doc. #82) filed January 15, 2015,
October 10, 2017, defendant filed a motion to vacate his
sentence under 28 U.S.C. § 2255. Motion Under 28
U.S.C. § 2255 (Doc. #100). Defendant asserts that
the Court erred when it failed to adopt the holding of
Rosemond v. United States, 134 S.Ct. 1240 (2014),
and accepted his guilty plea under 18 U.S.C. §§
924(c) and 2 (Claim 1). Motion Under 28 U.S.C. §
2255 (Doc. #100) at 7-8. He also argues that counsel
provided ineffective assistance because he failed to object
to the Court's sentence based on Rosemond (Claim
2) and relied on his friendship with Assistant United States
Attorney Tristram W. Hunt to receive a favorable plea
agreement (Claim 3). Id. at 8-9. On October 25,
2017, the Court directed the parties to file briefs
concerning potential procedural bars to defendant's
motion. See Memorandum And Order (Doc. #102). On
November 14, 2017, the government filed its response brief.
Government's Response To Court's Order (Doc.
#105). The defendant filed his reply on December 29, 2017.
Petitioner's Reply To Government's Response
Pursuant To His 28 U.S.C. § 2255 Motion (Doc.
Court applies a stringent standard of review when analyzing
Section 2255 petitions. 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 claims are barred as
untimely. See Government's Response (Doc. #105)
at 2-5. Section 2255 provides a one-year period of limitation
which ordinarily runs from the date on which the judgment of
conviction becomes final. 28 U.S.C. § 2255(f)(3). 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). On
January 29, 2015, the Court entered its judgment against
defendant. See Judgment In A Criminal Case (Doc.
#87). Under Rule 4(b) of the Federal Rules of Appellate
Procedure, defendant's judgment became final 14 days
later on February 12, 2015. Therefore, defendant had until
February 12, 2016 to file a Section 2255 petition. Defendant
filed his motion on October 10, 2017.
Section 2255(f)(3), the Court can consider a claim which is
filed after the one-year deadline, but within one year of
when 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.” 28 U.S.C. §
2255(f)(3). Defendant asserts that Rosemond, 134
S.Ct. 1240 (2014), retroactively applies to his case.
However, the Supreme Court decided Rosemond on March
5, 2014 - approximately nine months before defendant's
sentencing. Because the Supreme Court decided
Rosemond before defendant pled guilty and the Court
sentenced him, any newly recognized right would have been
established before and protected during defendant's
conviction and sentencing. Thus, Rosemond cannot
create a new retroactive rule under Section 2255(f)(3).
also asserts that the Court should toll the statutory
deadline for filing a Section 2255 petition because he is a
pro se litigant. Petitioner's Reply To
Government's Response Pursuant To His 28 U.S.C.
§ 2255 Motion (Doc. #106) at 2. While courts generally
hold pro se litigants to a less stringent standard, the Tenth
Circuit has repeatedly stated that parties who proceed pro se
“must follow the same rules of procedure that govern
other litigants.” Green v. Dorrell, 969 F.2d
915, 917 (10th Cir. 1992); Nielsen v. Price, 17 F.3d
1276, 1277 (10th Cir. 1994); Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Defendant's pro se status, alone, does not warrant
tolling Section 2255's limitations period.
defendant does not seek to toll the limitations period
through a claim of actual innocence. Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (equitable
tolling available only in rare and exceptional circumstances
such as when prisoner “actually innocent”).
Defendant has not presented any factual support for equitable
tolling, and the Court finds no basis for such tolling in
this case. Thus, the Court overrules defendant's claims
files and records in this case conclusively show that
defendant is not entitled to relief. Moreover, defendant does
not allege specific and particularized facts which, if true,
would entitle him to relief. Accordingly, no evidentiary
hearing is required. See 28 U.S.C. § 2255;
United States v. Cervini, 379 F.3d 987, 994 (10th
Cir. 2004) (standard for evidentiary hearing higher than
notice pleading); Kilpatrick, 124 F.3d 218 (Table),
1997 WL 537866, at *3 (10th Cir. 1997) (conclusory
allegations do not warrant hearing); United States v.
Marr, 856 F.2d 1471, 1472 (10th Cir. 1988) (no hearing
required where court may resolve factual matters raised by
Section 2255 petition on record); United States v.
Barboa, 777 ...