United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing 71)
filed by the defendant, Adrian Montoya Carlos. The
Court's initial review is governed by Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United
States District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
initial question is whether the defendant's motion was
timely filed. A § 2255 motion must be filed within
1 year 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.
§ 2255(f). Judgment was entered in this case on August
20, 2015, see filing 69, and became final when the
time for taking an appeal ran: far more than 1 year before
his March 20, 2017 motion, see filing
And none of the other provisions for accrual, set forth in
§ 2255(f)(2)-(4), can be found here.
statute of limitations set forth in § 2255 is not
jurisdictional, Moore v. United States, 173 F.3d
1131, 1134-35 (8th Cir. 1999), and may be equitably tolled
where the defendant shows (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing,
Muhammad v. United States, 735 F.3d 812, 815 (8th
Cir. 2013). An attorney's negligence or mistake is not
generally an extraordinary circumstance, but serious attorney
misconduct, as opposed to mere negligence, may warrant
equitable tolling. Id. at 816.
defendant's motion represents that it was not filed
within a year of final judgment because "attorney
promised to file this motion to the court to get my sentense
[sic] reduction." Filing 71 at 11. That allegation is
insufficient to establish a basis for equitable tolling.
See Muhammad, 735 F.3d at 816. Before dismissing a
petition, however, the Court must afford the parties fair
notice and an opportunity to be heard. Day, 547 U.S.
at 211. ...