United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge
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.
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.
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.
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.
Motion for a 60-Day Extension
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).
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.
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.Accordingly, to the extent Short wishes to
file a § 2255 petition, he should do so by the October
31, 2017 deadline.
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.
Transcripts, Affidavits, ...