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United States v. Galu

United States District Court, D. Hawaii

December 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SUGALU GALU (02); Defendant.

          ORDER DENYING DEFENDANT SUGALU GALU'S MOTION UNDER 28 U.S.C. § 2255 AS UNTIMELY; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          Susan Oki Mollway, United States District Judge.

         I. INTRODUCTION.

         On May 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 appeal).

         Galu is 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.

         II.THE COURT DENIES GALU'S § 2255 MOTION.

         A motion under § 2255 must be filed within one year of 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).

         Because 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).

         Because 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.

         Instead, 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 ...


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