United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE.
2005, Defendant pleaded guilty under a Fed. R. Crim. P.
11(c)(1)(C) plea agreement to five counts of felon in
possession of a firearm and one count of possessing a firearm
silencer. Now, nearly fourteen years later, he moves the
Court to vacate or amend his sentence under 28 U.S.C. §
2255. Doc. 82. He argues his counsel was ineffective for
recommending he plead guilty to the felon-in-possession
charges because the underlying statutory section exceeds
Congress’s Commerce Clause powers. He also argues the
Government violated the plea agreement when it failed to
object to the use of the murder cross-reference in
calculating the guideline range. Because his motion is
untimely (and is otherwise meritless), the Court dismisses
2005, Defendant pleaded guilty pursuant to a Fed. R. Crim. P.
11(c)(1)(C) plea agreement to five counts of felon in
possession of a firearm under 18 U.S.C. §§ 2,
922(g), and 924(a)(2), and to one count of possession of a
firearm with a silencer under 26 U.S.C. § 5861(d). Doc.
73 at 2-4. Four of the felon-in-possession counts stemmed
from firearms Defendant pawned. The two remaining counts
involved a firearm that Defendant equipped with a homemade
silencer and then used to kill Keith Riffel.
change of plea hearing, the parties presented the Rule
11(c)(1)(C) plea agreement, which proposed a sentence of 480
months’ imprisonment. Defendant also submitted a
petition to plead guilty, and a letter from the Daryl E.
Hawkins, Assistant County Attorney for Dickinson County,
Kansas, that stated that “[t]his office will not file
or re-file any charges against [Defendant] related to the
murder of Keith Riffel if [Defendant] enters his guilty plea
to the federal weapons charges under your plea agreement and
the court approves and accepts such plea and the forty year
sentence and imposes the same.” Doc. 73 at 11.
Court sentenced Defendant in October 2005. The presentence
investigation report (“PSIR”) calculated a base
offense level of forty-three by using a cross-reference under
United States Sentencing Guidelines § 2A1.1 because of
Mr. Riffel’s homicide. After adjustments,
Defendant’s total offense level was forty-two and his
criminal history category was IV, which produced an
applicable sentencing range under the guidelines of 360
months to life. The Court ultimately accepted the plea
agreement and imposed the proposed 480-month sentence. Doc.
75 at 3.
did not file a direct appeal. Instead, he filed the instant
motion in April 2019, arguing (1) his counsel was ineffective
for recommending he plead guilty to the § 922(g) charges
because this statute exceeds Congress’s Commerce Clause
powers, and (2) the Government breached the plea agreement by
not objecting to the murder cross-reference used in the PSIR
for establishing the base offense level. He seeks reversal
of his convictions and remand for a new trial.
Government opposes Defendant’s motion as untimely and
meritless. The Court agrees.
Defendant’s § 2255 motion is time barred.
a defendant has one year from the date the judgment becomes
final to file a § 2255 motion. 28 U.S.C. §
2255(f)(1). Defendant’s judgment became final ten
business days after it was entered on October 17, 2005. Fed.
R. App. P. 4(b)(1)(A)(i) (2005); Fed. R. App. P. 26(a)(2)
(2005). Therefore, Defendant’s motion far exceeds this
Defendant argues his motion is timely under §
2255(f)(4). This section states that a motion is timely if
filed within one year of “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)(4). Defendant contends that he only
recently discovered the “novel” issues at hand
after acquiring the assistance of a “paralegal.”
Defendant misunderstands the application of this statutory
section. “Section 2255(f)(4) speaks to discovery of
facts supporting a claim, not a failure to appreciate the
legal significance of those facts.” United States
v. Collins, 364 F. App’x 496, 498 (10th Cir. 2010)
(citing Marsh v. Soares, 223 F.3d 1217, 1220 (10th
Cir. 2000)). In this case, Defendant knew back in 2005 that
he pleaded guilty to multiple felon-in-possession charges
under 18 U.S.C. § 922(g). See, e.g., Doc. 73 at
1-4 and 12-15. And he also knew the terms of his plea
agreement and knew that the PSIR used the murder
cross-reference in calculating his base offense level and
resulting guideline range. Id. at 6. (“I have
received a copy of the final [PSIR], reviewed it with my
counsel, and have no objections.”). Therefore,
Defendant cannot credibly claim discovery of new evidence.
Rather, his arguments concern a new appreciation of the legal
significance of these known facts about his plea, plea
agreement, and sentence.
also argues the one-year limitation should be equitably
tolled. Equitable tolling requires extraordinary
circumstances and diligence. Lawrence v. Florida,
549 U.S. 327, 335 (2007). “[A] lack of awareness of the
law or lack of assistance in collateral review does not
constitute the type of extraordinary circumstances warranting
equitable tolling.” Collins, 364 F.
App’x at 498 (finding no extraordinary circumstances
when a defendant only learned of his ineffective assistance
of counsel claim when he hired new counsel) (citing Yang
v. Archuleta, 525 F.3d 925, 929-30 (10th Cir. 2008)).
Defendant contends he trusted his attorney for nearly
fourteen years until he received assistance from an inmate
with legal training on his now-abandoned Dimaya
claim. See supra footnote 2. He explains that while
evaluating that claim, the inmate with legal ...