United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER AND DENIAL OF
CERTIFICATE OF APPEALABILITY
LYNN WINMILL, U.S. DISTRICT COURT JUDGE
before the Court is Petitioner Yahqub Bello's motion
under 28 U.S.C. § 2255 to set aside or correct his
sentence, and the Government's motion to dismiss. The
motions are fully briefed and at issue. For the following
reasons, the Court will grant the Government's motion to
dismiss and deny Bello's motion to correct or set aside
pled guilty to bank fraud and was sentenced on November 27,
2017, to 15 months imprisonment, 3 years of supervised
release, and $60, 401 in restitution to be paid jointly and
severally with his co-defendant. See Minute Entry (Dkt. No.
71). The Judgment was filed the same day, November 27, 2017.
See Judgment (Dkt. No. 72).
had 14 days to appeal his sentence, and thus should have
filed his notice of appeal on or before December 12, 2017.
See Fed.R.App.P. 4(b)(1)(A)(i). But he waited almost ten
months to file his appeal, and the Ninth Circuit dismissed it
as untimely. Bello responded by filing the motion under
§ 2255 that the Court is now considering. Bello filed
his § 2255 motion on January 14, 2019, more than
thirteen months after this Court filed the Judgment of
28 U.S.C. § 2255(f)(1) and (f)(4), a petitioner must
bring a § 2255 motion within one year from the latest of
“the date on which the judgment of conviction becomes
final” or “the date on which the facts supporting
the claim or claims presented could have been discovered
through the exercise of due diligence.” Where a movant
does not appeal, the conviction becomes final at the
expiration of the time for filing a direct appeal pursuant to
Rule 4 of the Federal Rules of Appellate Procedure. U.S.
v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015). Rule 4
requires that defendant in a criminal case file a notice of
appeal within fourteen (14) days of entry of judgment. Fed.
R. App. P. 4(b)(1)(A)(i).
the movant files an untimely notice of appeal that is
dismissed, the date the conviction becomes final for purposes
of § 2255(f)(1) is not the date of that dismissal but is
rather the original deadline for filing the notice of appeal.
See U.S. v. Buckles, 647 F.3d 883, 889
(9th Cir. 2011) (“[i]f the one-year
limitations period were made contingent on the resolution of
a petitioner's attempt to file an untimely notice of
appeal, a petitioner could indefinitely delay the
commencement of the one-year period by simply waiting to file
such notice until after the normal expiration date”).
asserts ineffective assistance of counsel on several grounds:
failure to file an appeal; failure to investigate completely;
failure to challenge restitution order; failure to raise the
issue of money seized from him; failure to articulate a
defense; failure to inform him that counsel was not licensed
to practice law in Idaho when he was hired; failure to file
any pretrial motion; failure to inform him of the collateral
consequences of a guilty plea; failure to explain the
sentencing guidelines; and improperly advising him regarding
likely sentencing outcomes. In his briefing, he further
clarifies that the “collateral consequences of a guilty
plea” of which he was not advised refer to immigration
consequences and his likely removal from the country.
these issues could have and should have been raised within
the one-year limitation period for motions brought under
§ 2255. They were not. The applicable limitations period
began to run on December 12, 2017, the original deadline for
filing a notice of appeal. Gilbert, 807 F.3d at
1199. The one-year period therefore expired on December 12,
2018. Bello did not file this § 2255 action until
January 14, 2019, more than a month after the deadline.
argues that he is entitled to a later starting date for the
limitations period under § 2255(f)(4), which would begin
the limitations period on “the date on which the facts
supporting the claim or claims presented could have been
discovered through the exercise of due diligence.” The
Court disagrees for several reasons.
Bello asserts that his counsel failed to file an appeal on
his behalf. At sentencing on November 27, 2017, Bello was
advised that he had fourteen days to file an appeal, a
deadline that expired on December 12, 2017. By that date,
Bello was aware, or at least should have been aware through
due diligence, that his attorney had not filed an appeal as
expected. He is ...