Doe v. United States ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 United States of America, Case No. 2:19-cr-00136-KJD-BNW 4 No. 2:23-cv-01143-KJD Respondent/Plaintiff, 5 Order v. 6 Danielle Lacharis Buck, 7 Petitioner/Defendant. 8 9 Presently before the Court is Movant’s pro se Motion to Vacate, Set Aside, or Correct 10 Sentence under 28 U.S.C. § 2255 (#65). The Government did not file a response. For the reasons 11 stated below, Movant’s motion is denied. 12 I. Factual and Procedural Background 13 On October 26, 2021, Danielle Buck (“Buck”) pled guilty to mail fraud and aggravated 14 identity theft under 18 U.S.C. § 1341 and 18 U.S.C. § 1028A(a)(1). (#46). On May 10, 2022, the 15 Court sentenced Buck to twenty-one (21) months imprisonment for mail fraud and twenty-four 16 (24) months imprisonment for aggravated identity theft, for a total of forty-five (45) months, 17 followed by thirty-six (36) months of supervised release. (#61/64). Buck did not appeal her 18 conviction, so her judgment became final fourteen days later on May 24, 2022. Buck now 19 requests that the Court vacate her 24-month sentence under 28 U.S.C. § 2255, asserting that her 20 aggravated identity theft conviction now invalid in light of in Dubin v. United States, 599 U.S. 21 110 (2023). (#65). 22 II. Legal Standard 23 28 U.S.C. § 2255 allows a federal prisoner to seek relief under four grounds: (1) “the 24 sentence was imposed in violation of the Constitution or laws of the United States;” (2) “the 25 court was without jurisdiction to impose such a sentence;” (3) “the sentence was in excess of the 26 maximum authorized by law;” and (4) the sentence is “otherwise subject to collateral attack.” 28 27 U.S.C. § 2255(a). Motions filed pursuant to 28 U.S.C. § 2255 are subject to a one-year 28 limitations period. 28 U.S.C. § 2255(f). As relevant here, the limitations period runs from the 1 latest of “the date on which the judgment of conviction becomes final” or “the date on which the 2 right asserted was initially recognized by the Supreme Court, if that right has been newly 3 recognized by the Supreme Court and made retroactively applicable to cases on collateral 4 review[.]” 28 U.S.C. § 2255(f)(1), (3). 5 III. Analysis 6 On July 20, 2023, Buck filed this motion to vacate, arguing that because identity theft was 7 not the crux of her case, but rather fraud was, a conviction under 18 U.S.C. § 1028A(a)(1) is not 8 warranted, relying on the Supreme Court’s holding in Dubin as support for her argument. (#65, 9 at 1). Before addressing the merits of Buck’s argument, the Court must first determine whether 10 her motion is timely, and upon review, the Court finds it untimely. 11 A. Timeliness Under 28 U.S.C. § 2255(f) 12 Although the Court must construe pro se pleadings liberally, “pro se litigants are bound by 13 the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). As stated above, 14 Buck’s motion could be considered timely in either of two ways. See 28 U.S.C. § 2255(f)(1), (3). 15 First, under § 2255(f)(1), because her judgment became final on May 24, 2022, she had to file 16 her motion no later than May 24, 2023, for it to be considered timely. See 28 U.S.C. § 17 2255(f)(1). It is undisputed that Buck filed her motion on July 20, 2023, approximately fifty- 18 seven (57) days after the one-year period of limitations had expired. (#65, at 1). Therefore, 19 Buck’s motion is untimely under 28 U.S.C. § 2255(f)(1). Second, under § 2255(f)(3), Buck’s motion could be considered timely if it was filed within 20 one year of the “date on which the right asserted was initially recognized by the Supreme Court, 21 if that right has been newly recognized by the Supreme Court and made retroactively applicable 22 to cases on collateral review.” 28 U.S.C. § 2255(f)(3). While Buck does argue that her sentence 23 must be vacated after Dubin, she makes no argument that Dubin recognized a new right that 24 would be retroactively applicable.1 (See #65, at 1). Moreover, assuming, without deciding, that 25 Dubin did recognize a new right, Buck’s argument would still fail because nothing in that 26 opinion was made retroactive to cases on collateral review. See 599 U.S. at 110; cf. Welch v. 27 28 1 Because Dubin was published on June 8, 2023, had Buck persuaded the Court that Dubin recognized a new right that was made retroactively applicable, the Court would have found Buck’s motion timely. 1 United States, 578 U.S. 120, 135 (2016) (holding that Johnson v. United States, 576 U.S. 591 2 (2015) is retroactive in cases on collateral review). Accordingly, Buck’s motion is untimely 3 under 28 U.S.C. § 2255(f)(3). 4 IV. Certificate of Appealability 5 Finally, the Court must deny a certificate of appealability. To proceed with an appeal, 6 petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 7 22(b); 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950 (9th Cir. 2006); see also United 8 States v. Mikels, 236 F.3d 550, 551 (9th Cir. 2001) (“Congress had provided that an appeal 9 cannot be taken from a final order in a section 2255 proceeding unless a circuit justice or judge 10 issues a certificate of appealability.”) (quotations omitted). Determining whether a certificate of 11 appealability should be issued when the petition is dismissed on procedural grounds has two 12 components[.]” Slack v. McDaniel, 529 U.S. 473, 484 (2000). A certificate of appealability 13 should be issued if the prisoner shows (1) “that jurists of reason would find if debatable whether 14 the petition states a valid claim of the denial of a constitutional right, and (2) that jurists of 15 reason would find it debatable whether the district court was correct in its procedural ruling.” 16 Petrocelli v. Angelone, 248 F.3d 877, 883–84 (9th Cir. 2001). Buck has not met her burden in 17 demonstrating to the Court that either of these components has been satisfied, let alone both. As 18 such, a certificate of appealability is not warranted. 19 V. Conclusion 20 Accordingly, IT IS HEREBY ORDERED that Movant’s Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (#65) is DENIED. 21 IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for 22 Respondent and against Movant in the corresponding civil action, 2:23-cv-01143-KJD, and close 23 that case. 24 // 25 // 26 // 27 // 28 ] IT IS FURTHER ORDERED that Movant is DENIED a Certificate of Appealability. 2 Dated this 9 day of April 2024. 4 \ \ 5 KentJ.Dawsoniti—s 6 United States District Judge 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-