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United States v. Ricks

United States District Court, D. Hawaii

June 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BOBBY RICKS, JR. Defendant.

          ORDER DENYING DEFENDANT BOBBY RICKS'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 February 19, 2015, the grand jury indicted Defendant Bobby Ricks, Jr., for drug-related crimes. See ECF No. 76. On September 28, 2015, before a Magistrate Judge, Ricks pled guilty without a plea agreement to both counts of the Indictment. See ECF Nos. 104-06. The tape recording of that change of plea hearing indicates that: 1) there had been plea discussions, but that there was no plea agreement; 2) no promises had been made to Ricks to get him to plead guilty; 3) Ricks was told that he was subject to a minimum mandatory sentence of ten years of imprisonment and a maximum sentence of life imprisonment for his convictions, as well as a term of supervised release ranging from five years to life; 4) Ricks was told what the elements of his crimes were; and 5) Ricks understood that the sentencing judge would determine the applicable sentencing guidelines, did not have to follow the guidelines, and could sentence him up to the maximum terms.

         On October 21, 2015, this judge accepted Ricks's plea of guilty and judged him guilty of the two counts. See ECF No. 108. On February 22, 2016, this judge sentenced Ricks to 200 months of imprisonment, five years of supervised release, and a $200 special assessment. See ECF No. 122. In the process, the court adopted the Presentence Investigation Report and granted the Government's motion for downward departure. Id. Judgment was entered the following day, May 23, 2016. See ECF No. 125. On July 11, 2016, Ricks asked this court to modify or reduce his sentence. See ECF No. 129. On August 22, 2016, the court denied Ricks's motion for modification or reduction of his sentence. See ECF No. 134. Ricks did not appeal his conviction or sentence.

         On April 5, 2019, years after Ricks's judgment became final, Ricks filed the present motion seeking relief from his judgment and sentence under 28 U.S.C. § 2255. See ECF No. 135. 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.”

         The Government's response to Ricks's § 2255 motion is that it is untimely. See ECF No. 137. The court agrees and denies Ricks's § 2255 motion.

         II. THE COURT DENIES RICKS'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).

         Ricks does not dispute that his petition was filed more than one year after his conviction became final. However, he argues that his petition is timely because it was filed within a year of his discovery of facts, that the running of the limitations period should be equitably tolled, and that he is allowed to bring an actual innocence claim under the ...


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