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United States v. Potter

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 9, 2009

UNITED STATES OF AMERICA, RESPONDENT,
v.
WILLIAM LAWRENCE POTTER, MOVANT.

ORDER

Movant, a federal prisoner proceeding with counsel, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant contends that he is entitled to relief because he was "[n]ever resentenced under Sentencing Guidelines in violation of Due Process of law." Mot. at 5. Movant explains:

On August 23, 1988, the Ninth Circuit Court of Appeals declared the sentencing guidelines unconstitutional. See: Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988). On December 15, 1988, [movant] was sentenced, per guidelines, subject to parole. Thereafter, the United States Supreme Court reversed the Ninth Circuit Court of Appeals. See Mistretta v. United States 488 U.S. 361 (1989). However, [movant] was never resentenced under the Sentencing Reform Act to a term of supervised release but rather has languished under the jurisdiction of the United States Parole Commission. [Movant] should have been resentenced. See: Gubiensio-Ortiz v. Kanahele, 871 F.2d 104 (9th Cir. 1989).

Id. Movant's motion for resentencing is based on a 1989 decision of the Supreme Court. See Mistretta v. United States,488 U.S. 361 (1989). Movant's motion, however, was not filed until April 11, 2008. Thus, it appears that the motion was not filed within the one-year limitation period set forth in § 2255(f).

Since it appears from the motion that movant is not entitled to relief, it is hereby ORDERED that the motion is dismissed with leave to file an amended § 2255 motion within 30 days of the date of this order. See Rule 4, Rules Governing Section 2255 Proceedings. An amended motion must set forth the facts or authority upon which movant relies in contending that his motion is timely or that he is entitled to equitable tolling. Failure to file an amended motion will result in a recommendation that this action be dismissed without prejudice.

20090309

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