United States District Court, E.D. Washington
CHRISTOPHER M. PACKER, Movant,
UNITED STATES OF AMERICA, Respondent.
ORDER ON §2255 MOTION
WM. FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE
Mr. Packer filed a Motion Under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody on June 16, 2014. He also requested that counsel be appointed. The Court granted his request for appointment of counsel, then stayed the case to await the Ninth Circuit decision in Ezell v. United States, 778 F.3d 762 (9th Cir. 2015). Following the decision in Ezell, counsel asked to withdraw and Mr. Packer asked to proceed pro se.
Mr. Packer pled guilty to Count 1 of the Indictment so the Court sentenced him to 180 months imprisonment after determining Mr. Packer was ACCA qualified based on four convictions for violent felonies. Mr. Packer appealed. The Ninth Circuit affirmed finding that two of the four violent felonies qualified as per se crimes of violence.
The statute provides that only if the Motion, file and records "conclusively show that the movant is entitled to no relief" may the Court summarily dismiss the Motion without sending it to the United States Attorney for response. 28 U.S.C. § 2255(b). The Rules regarding Section 2255 Proceedings similarly state that the Court may summarily order dismissal of a 2255 motion without service upon the United States Attorney only "if it plainly appears from the motion, and any attached exhibits, and the record of prior proceedings that the movant is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." Rule 4(a), Rules-Section 2255 Proceedings. Thus when a movant fails to state a claim upon which relief can be granted or when the motion is incredible or patently frivolous, the district court may summarily dismiss the motion. Cf. United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989); Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985).
To gain relief, Mr. Packer must establish that (1) he is in custody under a sentence of this federal court; (2) his request for relief was timely; and (3) the court lacked either personal or subject matter jurisdiction, the conviction or sentence is unconstitutional, the conviction or sentence violates federal law, or the sentence or judgment is otherwise open to collateral attack. 28 U.S.C. § 2255.
STATUTE OF LIMITATIONS
The statute establishes a one year period of limitation for filing a § 2255 motion which 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 the Constitution or laws of the United States 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) (West 2013). The Motion is untimely unless (1) facts exist that would extend the one year period of limitation or (2) extraordinary circumstances exist which ...