United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
L. Christensen, Chief Judge United States District Court
case comes before the Court on Defendant/Movant Niles's
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. Niles is a federal prisoner proceeding
November 28, 2017, Niles was ordered to show cause why his
claims should not be dismissed with prejudice as time-barred.
He responded on January 22, 2018.
was sentenced on January 30, 2013. He did not appeal. His
sentence became final when his time to appeal expired, that
is, on February 13, 2013. See Griffith v. Kentucky,
479 U.S. 314, 321 n.6 (1987). He filed his § 2255 motion
(Doc. 45) more than four years later, on March 21, 2017.
one-year limitations period applies to each claim in a motion
under 28 U.S.C. § 2255. See Mardesich v. Cate,
668 F.3d 1164, 1171 (9th Cir. 2012). The first question,
therefore, is whether Niles's time to file expired before
he filed. If so, the second question is whether there is a
good reason to accept his late filing anyway.
filing deadline is one year after the latest
"trigger" date that applies to the claim.
See 28 U.S.C. § 2255(f)(1)-(4). A defendant
must file a § 2255 motion within one year of the latest
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
a defendant fails to file within a year of the applicable
"trigger" date, his claims will still be heard on
their merits if his untimely filing is excused either by
equitable tolling or by actual innocence. To obtain equitable
tolling, the defendant must allege facts sufficient to
support an inference that he pursued his rights diligently
but was prevented from filing on time by an extraordinary
circumstance that stood in his way. See, e.g., Holland v.
Florida, 560 U.S. 631, 649 (2010). To show actual
innocence, he must allege facts sufficient to support an
inference that, based on new evidence, it is more likely than
not that no reasonable fact-finder could find him guilty
beyond reasonable doubt. See, e.g., McQuiggin v.
Perkins, 569 U.S. 383, 387 (2013).