United States District Court, D. Hawaii
ORDER DETERMINING THAT PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 IS UNTIMELY AND DISMISSING PETITION; ORDER DENYING MOTION SEEKING EQUITABLE TOLLING; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE.
Defendant Aman Berhane filed a motion under 28 U.S.C. § 2255. Because that motion is untimely, and because the court denies Berhane’s motion seeking equitable tolling of the limitation period, the § 2255 motion is dismissed. The court declines to issue a certificate of appealability and orders the Clerk of Court to enter judgment and close this matter.
II. BACKGROUND FACTS.
On April 3, 2013, Berhane was indicted for drug and firearm crimes. See Indictment, ECF No. 9.
On May 23, 2013, Berhane consented in writing to a Rule 11 plea in a felony case before a United States Magistrate Judge. See ECF No. 24. Both Berhane and his attorney signed that document, which stated, “I have been advised by my attorney and the United States Magistrate Judge of my right to enter my plea in this case before a United States District Judge.” Id. Berhane then pled guilty with respect to Counts 1, 2, 3, and 4 of the Indictment before Magistrate Judge Barry M. Kurren. See ECF No. 22. At that hearing, Magistrate Judge Kurren advised Berhane, “[I]f you choose to enter a guilty plea you, of course, have the right to enter your plea before the District Judge who is assigned to your case and in your case it is Judge Mollway. If you consent, however, you may enter your plea before me, a Magistrate Judge.” ECF No. 63, PageID # 252-53. Magistrate Judge Kurren issued a Report and Recommendation concerning Berhane’s guilty plea, which this district judge accepted. This judge then determined that Berhane was guilty of those offenses. See ECF Nos. 23 and 26.
Berhane was sentenced to concurrent 240-month terms of imprisonment for each of the drug crimes and a 120-month term of imprisonment for being a felon in possession of a firearm, and the judgment was entered on May 29, 2014. See ECF No. 48.
On April 23, 2015, the court received a Motion to Withdraw and Nullify Guilty plea dated April 18, 2015. See ECF No. 51. This motion complained that Berhane had not been advised of his right to have a district judge conduct the change of plea hearing, and that the Magistrate Judge was not allowed to accept his guilty plea. Id. As noted above, however, Berhane was advised of his right to enter his change of plea before a district judge. Additionally, the Magistrate Judge did not accept his guilty plea, instead issuing a Report and Recommendation, which this district judge adopted, adjudging Berhane guilty.
On April 23, 2015, the court ordered Berhane to clarify whether he intended his Motion to Withdraw and Nullify Guilty Plea to be a § 2255 motion, warning him of the one-year limitation period and of the one § 2255 motion limit absent permission from the Ninth Circuit Court of Appeals. See ECF No. 52.
On May 11, 2015, Berhane clarified that he did not want his filing of April 23, 2013, to be construed as a § 2255 motion. See ECF No. 53, PageID # 195 (“The defendant further contends that his April 23, 2015 filing is not intended, nor can it be construed as a petition filed pursuant to 28 U.S.C. § 2255.”).
On May 12, 2015, the court denied Berhane’s Motion to Withdraw and Nullify Guilty Plea. See ECF No. 55. In that order, the court stated, “If Berhane opts to proceed under § 2255 after all, he must so notify the court. Otherwise, this court will consider this matter concluded.” Id.
On June 1, 2015, not having notified this court of any intent to have his filing of April 23, 2015, construed as a § 2255 motion, Berhane filed a Notice of Appeal from the court’s order of May 12, 2015. See ECF No. 56. Berhane placed his Notice of Appeal in the mail on or about May 27, 2015, which was nearly one year after the entry of the judgment in his criminal case. Id.
On October 21, 2015, the Ninth Circuit denied Berhane's request for in forma pauperis status because it found the appeal frivolous. It gave him 21 days to pay the filing fee. ECF No. 64. On November 20, 2015, the Ninth Circuit issued its order dismissing the appeal given Berhane’s failure to pay the filing fee. ECF No. 65.
On November 27, 2015, Berhane filed the present § 2255 motion (the postmark reads November 23, ...