United States District Court, D. Hawaii
ORDER TO SHOW CAUSE WHY DEFENDANT RUBEN SETTLE'S
MOTION UNDER 28 U.S.C. § 2255 SHOULD NOT BE DISMISSED AS
Oki Mollway United States District Judge.
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.
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. 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
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.
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
(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).
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. § 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