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United States v. Settle

United States District Court, D. Hawaii

May 15, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RUBEN SETTLE; Defendant.

          ORDER TO SHOW CAUSE WHY DEFENDANT RUBEN SETTLE'S MOTION UNDER 28 U.S.C. § 2255 SHOULD NOT BE DISMISSED AS UNTIMELY

          Susan Oki Mollway United States District Judge.

         I. INTRODUCTION.

         On May 9, 2018, Defendant Ruben Settle filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody. Because the arguments he raises in support of his motion appear to be time-barred, Settle is ordered to show cause why his § 2255 motion should not be dismissed.

         II. BACKGROUND.

         On January 28, 2015, the grand jury indicted Settle for knowingly and intentionally possessing, with intent to distribute, more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine. See ECF No. 8.[1] On March 12, 2015, Settle pled guilty without a plea agreement. See ECF No. 16. On June 29, 2015, Settle was sentenced to 210 months of imprisonment, 5 years of supervised release, and a $100 special assessment. See ECF No. 21. Judgment was entered the following day, June 30, 2015. See ECF No. 22. On July 7, 2015, Settled appealed. See ECF No. 25. Although Settle was given a chance by the Ninth Circuit to raise issues going to his appeal after his counsel filed an Anders brief, Settle did not file a pro se brief at all at the time, and his sentence was accordingly affirmed on February 29, 2016. See ECF No. 33. On March 23, 2016, the Ninth Circuit issued its Mandate. See Ninth Cir. No. 15-10347, DktEntry No. 10. It does not appear that Settle sought certiorari from the United States Supreme Court.

         On November 6, 2017, Settle filed a Motion Under 28 U.S.C. § 2244 For Order Authorizing District Court to Consider Second or Successive Application for Relief Under 28 U.S.C. §§ 2254 or 2255. ECF No. 36. Section 2244(b)(3) was actually inapplicable, because Settle had not previously filed a motion under 28 U.S.C. § 2255. The focus of Settle's 2017 filing was that certain prior convictions should not have counted in his criminal history calculation. The motion appeared to be seeking relief under 28 U.S.C. § 2255, causing the court to state that it was deeming the motion to be one under 28 U.S.C. § 2255 unless Settle expressly notified the court no later than December 29, 2017, that he did not wish his filing of November 6, 2017, to be deemed a motion under 28 U.S.C. § 2255. See ECF No. 37.

         Section 2255 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.” 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).

         In the same document announcing that the court would deem Settle's filing to be a § 2255 motion unless Settle notified the court not to do so, the court ordered Settle to show cause why his § 2255 motion should not be dismissed as untimely, stating:

Settle is ordered to show cause why his motion under 28 U.S.C. § 2255 should not be dismissed as untimely, as the resentencing in case number VA102901-01 occurred prior to his sentencing. See 28 U.S.C. ยง 2255(f)(4). The court notes that, even if Settles is correct that he should have only received 2 criminal history points for his conviction in case number VA102901-01, a total of 10 criminal history ...

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