United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE
DISMISSED AS UNTIMELY
Gurmeet Singh Bisla challenges his sentence and conviction
through this motion to set aside or vacate under 28 U.S.C.
November 16, 2012, following a jury trial in 2010 and
subsequent competency proceedings, Petitioner was sentenced
to 192 months in custody for violations of 21 U.S.C.
§§ 841 and 846, conspiracy to distribute and
possess with the intent to distribute cocaine. See
Doc. No. 488.
a direct appeal, the Ninth Circuit affirmed Petitioner's
conviction on February 27, 2014. See Doc. No. 509.
Petitioner did not seek review from the Supreme Court.
See Doc. No. 520 at p.2 ¶ 9(g).
23, 2016, the Court issued an amended judgment that reduced
Petitioner's sentence from 192 months to 150 months.
See Doc. No. 518. The judgment was reduced pursuant
to 18 U.S.C. § 3582(c)(2) and by stipulation.
See Doc. Nos. 515, 516, 517.
December 19, 2016, Petitioner filed this § 2255
2255 contains a 1-year statute of limitations in which to
file a petition to vacate, set aside, or correct. 28 U.S.C.
§ 2255(f); United States v. Buckles, 647 F.3d
883, 887 (9th Cir. 2011). The 1-year limitation period runs
from the latest of: “(1) the date on which the judgment
of conviction becomes final; (2) the date on which the
impediment to making a motion created by governmental action
in violation of [federal law] is removed, if the movant was
prevented from making a motion by such governmental action;
(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). Generally,
“[f]inality attaches when the Supreme Court affirms a
conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for
filing a certiorari petition expires.”
Buckles, 647 F.3d at 887. However, even if the
1-year limitations period has run, a petitioner may be
entitled to “equitable tolling.” Id.
“A § 2255 movant is entitled to equitable tolling
only if he shows: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.”
Id. Although § 2255(f)'s 1-year limitations
period may be raised sua sponte, the court must give
the petitioner notice and an opportunity to respond before
dismissing the case. See Herbst v. Cook, 260 F.3d
1039, 1043-44 (9th Cir. 2001).
because the petition does not suggest a different starting
point, it appears that § 2255(f)(1) sets the date that
Petitioner's 1-year limitations period began to run.
Because Petitioner filed a direct appeal and did not file a
petition for certiorari with the Supreme Court,
Petitioner's conviction became final in May 2014.
See Supreme Ct. R. 13; Buckles, 647 F.3d at
887-89. It is true that an “amended judgment” was
entered in June 2016. However, as noted above, the amended
judgment was a sentence reduction under § 3582(c)(2).
Amended judgements under § 3582(c)(2) do not constitute
new intervening judgments and thus, do not reset the clock
for filing a § 2255 petition. Sherrod v. United
States, 858 F.3d 1240, 1241-42 (9th Cir. 2017);
White v. United States, 745 F.3d 834, 836-37 (7th
Cir. 2014). Because the § 3582 amended judgment does not
affect “finality, ” under § 2255(f)(1),
Plaintiff had until May 2015 in which to file this petition.
However, this petition was not filed until December 19, 2016.
Thus, on its face the petition is untimely by over a year and
accordance with Herbst, the Court will give
Petitioner the opportunity to show that this ion is timely.
In order to avoid dismissal, Petitioner must demonstrate
either compliance with 2255(f)'s 1-year limitations
period or that he is entitled to equitable tolling.
IT IS HEREBY ORDERED that Petitioner is to show cause in
writing why his § 2255 petition should not be dismissed
as barred under the one-year limitations period of §
2255(f). Petitioner shall show cause in writing within thirty
(30) days of service of this order. Petinioner's response
shall be entitled “Response to Order to Show Cause,
” and shall set forth Specific facts regarding
compliance with § 2255(f) or the applicability of
equitable tolling to this If ...