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Bello v. United States

United States District Court, D. Idaho

August 6, 2019

YAHQUB BELLO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM DECISION AND ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY

          B. LYNN WINMILL U.S. DISTRICT COURT JUDGE

         INTRODUCTION

         Pending 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 the sentence.

         BACKGROUND

         Bello 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).

         Bello 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 Conviction.

         LEGAL STANDARD

         Under 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).

         When 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”).

         ANALYSIS

         Bello 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.

         Each of 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.

         Bello 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.

         First, 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 ...


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