United States District Court, D. Hawaii
ORDER DENYING DEFENDANT SUGALU GALU'S MOTION
UNDER 28 U.S.C. § 2255 AS UNTIMELY; ORDER DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY
Oki Mollway, United States District Judge.
23, 2013, the grand jury indicted Defendant Sugalu Galu and
others for drug-related crimes. See ECF No. 17. On
July 8, 2014, Galu pled guilty to Count 1 of the Indictment
pursuant to a memorandum of plea agreement. See ECF
Nos. 92-93. On May 7, 2015, Galu was sentenced to 240 months
of imprisonment, 10 years of supervised release, and a $100
special assessment. See ECF No. 141. Judgment was
entered the following day, May 8, 2015. See ECF No.
142. Galu did not appeal. See ECF No. 265, PageID #
1663 (28 U.S.C. § 2255 motion indicating Galu did not
seeking relief from his judgment and sentence under 28 U.S.C.
§ 2255, which provides for a motion by an incarcerated
federal defendant to vacate, set aside, or correct a sentence
on the ground “that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” On August 14, 2017, the court issued an order
to show cause why Galu's § 2255 motion was not
untimely. See ECF No. 265. The court now denies
Galu's § 2255 motion.
COURT DENIES GALU'S § 2255 MOTION.
motion under § 2255 must be filed within one year of 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).
Galu does argue that there was an impediment to filing it,
that the Supreme Court has recently recognized a right, or
that the facts supporting it were recently discovered, the
limitation period runs from the date on which Galu's
judgment became final. 28 U.S.C. § 2255(f)(1). For
purposes of § 2255(f)(1), when a defendant appeals a
judgment, the judgment becomes final when the Supreme Court
rules on the merits, when the Supreme Court denies a petition
for writ of certiorari, or when the time for filing a
certiorari petitions expires. United States v.
Buckles, 647 F.3d 883, 887 (9th Cir. 2011).
However, when a defendant does not appeal a judgment, the
judgment generally becomes final 14 days after the entry of
judgment. See United States v. Colvin, 204 F.3d
1221, 1226 (9th Cir. 2000) (noting that a judgment
becomes final when the time has passed for appealing it);
Fed. R. Crim. P. 14(b)(1)(A).
there is a one-year limitation period for motions under 28
U.S.C. § 2255, and because Galu did not file the present
motion until August 14, 2017, more than two years after
judgment was entered on May 8, 2015, the motion is untimely.
See ECF No. 277, PageID 1750 (conceding that the
motion was not timely filed). Accordingly, the § 2255
motion must be denied unless Galu demonstrates that the
limitation period should be equitably tolled. See United
States v. Castro-Verdugo, 750 F.3d 1065, 1071
(9th Cir. 2014) (“after the one-year statute
of limitations has passed, we may consider a § 2255
motion to vacate, set aside, or correct a sentence only if
the petitioner establishes eligibility for equitable tolling
by showing (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.”
(quotation marks and citations omitted)); United States
v. Aguirre-Ganceda, 592 F.3d 1043, 1046 (9th
Cir. 2010) (“Even though Aguirre's section 2255
motion was untimely, we may toll the one-year limitation
period if (1) the petitioner has diligently pursued his
rights, and (2) extraordinary circumstances exist.”).
Galu, however, is not asking for the limitation period to be
equitably tolled. See ECF No. 277, PageID 1750.
Galu argues that this court lacked jurisdiction to impose his
sentence because the Government had failed to comply with the
prerequisites of the sentencing enhancement under 21 U.S.C.
§ 851. Galu then argues that, because the Government
failed to comply with those requirements, he is actually