United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE
A. KIMBALL, United States District Judge
matter is before the court on Petitioner Francisco Javier
Romero-Barajas's Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255. On October 7, 2013, Mr.
Romero-Barajas and a co-defendant were named in an indictment
charging them with conspiracy to possess methamphetamine with
intent to distribute in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 846. On December 15, 2014, Mr.
Romero-Barajas pleaded guilty to that charge under Federal
Rule of Criminal Procedure 11(c)(1)(C). Under the terms of
the signed "Statement By Defendant in Advance of Plea of
Guilty and Plea Agreement Pursuant to Fed. R. Crim. P.
11(c)(1)(C), " Mr. Romero-Barajas also agreed to waive
his appellate and collateral review rights.
to the terms of the agreement, the court sentenced Mr.
Romero-Barajas to 108 months of imprisonment followed by a
term of supervised release of 60 months. On March 10, 2015,
the court entered judgment against Mr. Romero-Barajas, and
Mr. Romero-Barajas did not file an appeal.
initial matter, Mr. Romero-Barajas's waiver of collateral
review rights is valid and enforceable. See United States
v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001)
("[A] waiver of collateral attack rights brought under
§ 2255 is generally enforceable where the waiver is
expressly stated in the plea agreement and where both the
plea and the waiver were knowingly and voluntarily
made."). But an exception to the waiver exists when the
petitioner is claiming ineffective assistance of counsel with
respect to entering the plea or negotiating the agreement.
See Id. ("[A] waiver may not be used
... to deny review of a claim that the agreement was entered
into with ineffective assistance of counsel." (citation
omitted)). In this case, although Mr. Romero-Barajas claims
that his counsel was ineffective, he is not claiming that the
ineffectiveness of his counsel affected his decision to agree
to waive his appellate and collateral review rights.
United States v. Frazier-LeFear, 665 Fed.Appx. 727,
730 (10th Cir. 2016) (clarifying that exceptions to the
waiver are "inapplicable to errors distinct from the
waiver itself). Therefore, Mr. Romero-Barajas waived his
right to attack his sentence in the very manner that he is
attempting to attack it through this petition, so his
petition should be denied.
the court considered the merits Mr. Romero-Barajas's
petition, his petition would fail because it is barred by the
statute of limitations and because the court already
considered and rejected Mr. Romero-Barajas's main
argument. "A district court is authorized to modify a
Defendant's sentence only in specified instances where
Congress has expressly granted the court jurisdiction to do
so." United States v. Blackwell, 81 F.3d 945,
947 (10th Cir. 1996). Under 28 U.S.C. § 2255, a prisoner
in custody can move the court to vacate, set aside, or
correct a sentence if the sentence was unconstitutional,
illegal, in excess of the maximum authorized by law, or
otherwise subject to collateral attack. A one-year statute of
limitation applies to motions brought under § 2255.
The limitation period shall run from 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
28 U.S.C. § 2255(f).
Judgment in Mr. Romero-Barajas's underlying criminal case
was entered on March 10, 2015. Mr. Romero-Barajas had 30 days
to file an appeal, which he chose not to do. Therefore, the
Judgment became final on April 9, 2015, and the one-year
statute of limitations began to run. Absent an event
restarting the one-year period, Mr. Romero-Barajas would be
time barred from filing a petition after April 9, 2016, which
would include his § 2255 petition, filed March 23, 2017.
Therefore, Mr. Romero-Barajas's petition is time barred.
Romero-Barajas does not argue that his petition falls within
one of the other statutory limitations periods. Instead, Mr.
Romero-Barajas argues that he filed his § 2255 petition
because he had not received an answer from the court
regarding his Motion for Reduction of Sentence Pursuant to
Title 18 U.S.C. § 3582(c)(2), U.S.S.G. § 1B1.10,
and Amendment 782, which he filed with the court on September
12, 2016. However, the court entered an order denying that
motion on January 17, 2017. Therefore, even if his reason for
filing a § 2255 petition after the one-year deadline
were sufficient to render his petition timely, Mr.
Romero-Barajas's petition would still fail because it is
based on the failure of the court to enter an order that the
court has already entered.
to Rule 11 of the Rules Governing Section 2255 Proceedings
for the United States District Courts, "[t]he district
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant." Under
28 U.S.C. § 2253, a certificate of appealability
"may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2); United States
v. Silva, 430 F.3d 1096, 1100 (10th Cir.2005) (quoting
28 U.S.C. § 2253(c)(2)). The court finds that
"reasonable jurists could not debate whether the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). The court concludes
that Mr. Romero-Barajas has not made a substantial showing of
the denial of a constitutional right and, therefore, declines
to issue a Certificate of Appealability. If Mr.
Romero-Barajas wishes to appeal the court's ruling on his
motion, he must seek a certificate from the court of appeals
under Federal Rule of Appellate Procedure 22.
reasons above, Mr. Romero-Barajas's motion under 28
U.S.C. § 2255 is DENIED and DISMISSED WITH PREJUDICE he
waived his right to collateral review of his sentence and
because his ...