United States District Court, N.D. California
ORDER TO SHOW CAUSE RE: MOTION UNDER 28 U.S.C. §
2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE RE: DKT. NO.
GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE
August 6, 2018, defendant Merl Simpson filed a Motion under
28 U.S.C. Section 2255 to Vacate, Set Aside, or Correct
Sentence. (Dkt. No. 89-2 (“Motion”)) In the
Motion, defendant seeks to reduce his sentence in light of
two United States Supreme Court decisions in Johnson v.
United States, 135 S.Ct. 2551 (2015), and Mathis v.
United States, 136 S.Ct. 2243 (2016). (Motion at
14-23) Defendant further argues that his trial
counsel rendered ineffective assistance in failing to object
to certain guidelines calculations and enhancements,
(id. at 23-28) that this ineffective assistance
rendered his guilty plea flawed, (id. at 28-32) and
that the Court erred in imposing a sentence relating to a
crime to which he did not stipulate. (Id. at 32-38.)
Finally, defendant claims that he is not procedurally barred
from raising these claims in the Motion, (id. at
35-36) that “Amendment 794 is applicable to him,
” (id. at 36) and requests appointment of
counsel. (Id. at 36-36.)
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA), motions brought under 28 U.S.C. section 2255
are subject to a 1-year period of limitations. Under 28
U.S.C. section 2255(f), the limitation period runs from the
(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.
28 U.S.C. § 2255(f).
on an initial review, the Motion does not meet the first
defined period that it be filed within one year of the date
on which the judgment of conviction becomes final. Section
“2255's one-year limitation period starts to run
when the time for seeking such review expires.”
Clay v. United States, 537 U.S. 522, 532 (2003).
Final Judgment in this criminal matter was issued on May 3,
2017. (Dkt. No. 57.) Under Fed. R. App. P.
4(b)(1)(A), defendant had 14 days from either the date of
judgment or the filing of a government's notice of appeal
to file his own notice of appeal with the Court. No. notices
of appeal were received from the defendant or plaintiff.
Therefore, the one-year limitation period began on May 17,
2017, and subsequently ended on May 17, 2018. Defendant filed
the Motion nearly three months after this date, on August 6,
2018. (Dkt. No. 89.) Accordingly, the Motion was not filed
within one year of the date on which the judgment of
conviction became final.
Motion on its face is otherwise silent as to the other three
defined limitations periods, and as to the reasoning for
defendant's delay in filing a motion pursuant to section
2255 beyond the one-year period after the judgment became
final. (Motion at 10-11)
defendant is Hereby Ordered to Show Cause
why the Motion should not be denied as time barred. Defendant
is Ordered to respond by Monday,
January 6, 2020 to the following:
(1) explain why the one-year statute of limitations does not
bar the Motion;
(2) provide any explanation for his delay in filing the
Motion beyond the one-year period after the judgment became
(3) demonstrate that such a delay is attributable to
“extraordinary circumstances.” See United
States v. Battles,362 F.3d 1195, 1196-98 (9th Cir.
2004) (statute of limitations set forth by statute can be
equitably tolled for section 2255 ...