United States v. Loumoli ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 6, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 12-4054
(D.C. Nos. 2:11-CV-01184-TC and
VILIAMI S. LOUMOLI, 2:08-CR00431-TC, 2:08-CR-00499-TC)
(D. Utah)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
Viliami Loumoli, a federal prisoner appearing pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s order denying his 28 U.S.C.
§ 2255 petition to vacate, set aside, or correct his sentence. See 28 U.S.C.
§ 2253(c)(1)(B). Exercising jurisdiction under 28 U.S.C. § 1291, we deny his COA
*This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Mr. Loumoli is proceeding pro se, we construe his pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant's] arguments
liberally; this rule of liberal construction stops, however, at the point at which we begin
to serve as his advocate.”).
request and dismiss this matter.
I. BACKGROUND
In July 2008, Mr. Loumoli was indicted in two federal cases—2:08-cr-431 and
2:08-cr-499. Facing a total of 16 counts related to weapons and robbery crimes, Mr.
Loumoli entered into a combined plea agreement with the Government under Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure. Mr. Loumoli agreed to plead
guilty to the first two counts of each indictment, and the Government agreed to dismiss
the remaining charges against him and to recommend a 35-year prison sentence.
The district court accepted the plea agreement and sentenced Mr. Loumoli to 35
years of imprisonment. It entered judgment on January 21, 2009. Mr. Loumoli did not
appeal.
In May 2010, Mr. Loumoli was indicted in a third case—2:08-cr-758—and
charged with racketeering conspiracy under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962(d). Some of the RICO indictment’s
alleged predicate acts were the bases of charges against Mr. Loumoli in case 2:08-cr-431
and were part of his plea agreement.
As a result of the RICO indictment, on August 1, 2011, Mr. Loumoli sent a letter
to the district court asking to withdraw his guilty plea in cases 2:08-cr-431 and 2:08-cr-
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499 and to dismiss case 2:08-cr-758.2 He argued that the Government breached his plea
agreement by charging him with racketeering conspiracy. He also asserted that the RICO
indictment violated his Fifth Amendment right against double jeopardy and that his
counsel’s representation had been ineffective for failing to warn him about the possibility
of a RICO charge.
The Government dismissed the RICO charge, and Mr. Loumoli informed the
district court that his motion to dismiss case 2:08-cr-758 was therefore moot. Mr.
Loumoli told the court he still wished to withdraw his guilty plea in cases 2:08-cr-431
and 2:08-cr-499. On December 5, 2011, the court ordered Mr. Loumoli to re-file his
motion as a petition under 28 U.S.C. § 2255 within three weeks.
Mr. Loumoli filed his § 2255 petition on December 16, 2011. In an order on
January 19, 2012, the district court denied Mr. Loumoli’s petition as time-barred under
28 U.S.C. § 2255(f)’s one-year limitation period. Mr. Loumoli filed a motion for
reconsideration, which the court also denied.
II. DISCUSSION
Mr. Loumoli now seeks a COA to challenge the district court’s order denying his
§ 2255 petition as time-barred. He has identified three issues in his application: (1) the
Government breached his plea agreement; (2) he received ineffective assistance of
counsel; and (3) the RICO action against him was a violation of his right against double
2
The district court treated the August 1, 2011 letter as a motion to withdraw Mr.
Loumoli’s guilty plea in cases 2:08-cr-431 and 2:08-cr-499.
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jeopardy.
“The issuance of a COA is a jurisdictional prerequisite to an appeal from the
denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d 1228,
1241 (10th Cir. 2010), cert. denied, 131 S. Ct. 172 (2010); see also 28 U.S.C.
§ 2253(c)(1)(B). If the district court’s decision rested on procedural grounds, we will
issue a COA only if the applicant “demonstrate[s] both that ‘jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.’” Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006)
(emphasis added) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
The district court’s procedural ruling rested on 28 U.S.C. § 2255(f). Under that
provision, a prisoner must file a § 2255 petition within one year of the latest of four dates.
See 28 U.S.C. § 2255(f)(1)-(4). The district court determined that the applicable date was
“the date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.” Id. § 2255(f)(4).
The claims in Mr. Loumoli’s § 2255 petition all arise from the Government’s
RICO indictment. The district court explained that the RICO indictment was filed on
June 2, 2010, and Mr. Loumoli knew on that date the facts supporting his claims. Mr.
Loumoli thus had until June 2, 2011, to file his § 2255 petition.
Mr. Loumoli did not file the motion to withdraw his guilty plea until August 1,
2011, and he did not file his § 2255 petition until December 16, 2011. Regardless of
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whether either date is used to determine when Mr. Loumoli filed his petition, each is
beyond § 2255’s one-year limitation period.
In addition, Mr. Loumoli’s COA application focuses on the merits of his claims
and does not dispute the district court’s procedural ruling. Even construing Mr.
Loumoli’s application liberally, we cannot conclude that the district court’s ruling is
reasonably debatable.
III. CONCLUSION
For the foregoing reasons, we deny Mr. Loumoli’s request for a COA and dismiss
this matter.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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