Date: 04-10-2015

Case Style: United States of America v. Pedro Julian Montoya-Gonzalez

Case Number: 14-5136

Judge: Harris L. Hartz

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Northern District of Oklahoma (Tulsa County)

Plaintiff's Attorney:

Defendant's Attorney:

Description: Defendant Pedro Julian Montoya-Gonzalez pleaded guilty in the United States
District Court for the Northern District of Oklahoma to the charge of reentry of a
deported alien in violation of 8 U.S.C. § 1326. He was sentenced to 46 months’
imprisonment. After our dismissal of his appeal for failure to prosecute, he filed a pro se
motion for relief under 28 U.S.C. § 2255, claiming that his counsel provided ineffective
assistance by failing to request (1) credit for the 27 days Defendant was incarcerated after
his arrest but before he was taken into federal custody, and (2) a downward departure
based on the “fast-track” early-disposition program, see United States v. Luna-Acosta,
FILED
United States Court of Appeals
Tenth Circuit
April 10, 2015
Elisabeth A. Shumaker
Clerk of Court
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715 F.3d 860, 861 n.2 (10th Cir. 2013) (“The so-called ‘fast track’ program allows a
defendant, upon motion of the government, to obtain up to a four-level downward
departure from his offense level in exchange for pleading guilty pursuant to an early
disposition program.”); USSG § 5K3.1. The district court denied the motion because it
was untimely under 28 U.S.C. § 2255(f) and Defendant now seeks a certificate of
appealability (COA) to appeal that denial. See 28 U.S.C. § 2253(c)(1)(B) (requiring
COA to appeal denial of § 2255 motion). We deny a COA and dismiss the appeal.
Motions under § 2255 are subject to a one-year statute of limitations. See id.
§ 2255(f). This court dismissed Defendant’s direct appeal on July 8, 2013, because he
had failed to pay the filing fee or file a proper motion for leave to proceed in forma
pauperis (ifp). The limitations period started to run on October 6, 2013, upon expiration
of the 90-day period for filing a petition for certiorari in the United States Supreme Court.
See Clay v. United States, 537 U.S. 523, 532 (2003). Defendant submitted his § 2255
motion more than a year later, on October 13, 2014. In district court he asserted that his
motion was timely because he had only recently found a case supporting his argument,
but the district court explained that this discovery was irrelevant under § 2255(f). In his
appellate brief, Defendant does not contest the district court’s timeliness ruling and has
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not offered any basis for overcoming the statutory bar. We therefore DENY the request
for a COA and DISMISS the appeal. We also DENY the motion for leave to proceed ifp.

Outcome: Appellant is ordered to pay the filing fee to the district court forthwith.

Plaintiff's Experts:

Defendant's Experts:

Comments: