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United States v. Short

United States District Court, D. Idaho

October 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RAY SHORT, Defendant.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief Judge

         INTRODUCTION

         Defendant Ray Short requests a 60-day extension of time in which to file a motion for post-conviction relief under 28 U.S.C. § 2255. Mr. Short also asks the Court to “release to me all court transcripts, all affidavits and all discovery from the prosecution of my case.” July 28, 2017 Letter Motion, Dkt. 70, at 1-2. For the reasons explained below, the Court will deny both requests.

         BACKGROUND

         In July 2015, this Court sentenced Defendant Ray Short to 180 months in prison after he pleaded guilty to attempted sexual exploitation of a minor child. See July 16, 2015 Judgment, Dkt. 53, at 1. Mr. Short appealed, challenging the constitutionality of his mandatory minimum sentence of 15 years. See July 28, 2015 Notice of Appeal, Dkt. 55.

         On August 2, 2016, the Ninth Circuit affirmed, concluding that Short's sentence did not violate the Eighth Amendment. See August 2, 2016 Memorandum Disposition, Dkt. 68. The Ninth Circuit issued its mandate on August 25, 2016. See Dkt. 69. Mr. Short did not file a petition for writ of certiorari with the United States Supreme Court.

         On July 28, 2017, Mr. Short filed the pending request for an extension. In making this request, Short has mistakenly concluded that the one-year clock for filing a § 2255 motion began ticking on August 2, 2016 and thus expired on August 2, 2017. As discussed below, Mr. Short's one-year clock did not begin ticking until October 31, 2016. As a result, Mr. Short has until October 31, 2017 to file his § 2255 motion. The Court will therefore deny his request for a 60-day extension.

         DISCUSSION

         1. Motion for a 60-Day Extension

         Motions for post-conviction relief under 28 U.S.C. § 2255 are subject to a one-year statute of limitations that generally begins running on “the date on which the judgment of conviction becomes final.” § 2255(f)(1). But when a defendant appeals from his direct conviction, and does not then file a petition for a writ of certiorari with the United States Supreme Court, the “judgment of conviction” does not become final until the time expires for filing a petition for certiorari. See Clay v. United States, 123 S.Ct. 1072 (2003); United States v. Garcia, 210 F.3d 1058 (9th Cir. 2000).

         Here, the Ninth Circuit affirmed Short's sentence on August 2, 2016. Short had 90 days from that date, or until October 31, 2016, in which to file a petition for writ of certiorari. See U.S. Sup. Ct. R. 13.1, 13.3 (90 days to file petition for certiorari “runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate . . . .”). Mr. Short thus has until October 31, 2017 to file his § 2255 petition and there is no need for a 60-day extension from August 2, 2017 to October 1, 2017.

         Mr. Short should also be aware that although the Ninth Circuit has not yet weighed in, a majority of circuits facing the issue hold that district courts do not have jurisdiction to grant extensions for § 2255 motions that have not yet been filed.[1]Accordingly, to the extent Short wishes to file a § 2255 petition, he should do so by the October 31, 2017 deadline.

         Given that the deadline to file a § 2255 has not yet expired, the Court will deny Short's motion for an extension of that deadline as premature.

         2. Transcripts, Affidavits, ...


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