United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
November 1, 2016, petitioner Amy Ketelsen
(“Ketelsen”) filed a pro se motion to
vacate, set aside, or correct her sentence pursuant to 28
U.S.C. § 2255. (Docket #1). She argues that her sentence
should be reduced on the basis of her playing a “minor
role” in her underlying conviction for Conspiracy to
Import Methylone Into the United States and Distribute and
Possess with Intent to Distribute Methylone, in violation of
21 U.S.C. § 841(a)(1), 21 U.S.C. §§
841(b)(1)(C), and 846. (Docket #1). This “minor
role” adjustment is based on Amendment 794 to the
United States Sentencing Guidelines. Id. at 6.
motion is untimely. Federal inmates such as Ketelsen may
attack the validity of their federal sentences by filing
Section 2255 motions within a one-year limitations period.
This period begins to run from the latest of: “(1) the
date on which the judgment of conviction becomes final; (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 governmental action;
(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.” 28 U.S.C. § 2255(f). Ketelsen took no
appeal from her criminal judgment, and so it became final on
June 11, 2015. See Fed. R. App. P. 4(b)(1)(A).
Ketelsen was required, then, to file the instant motion not
later than June 11, 2016, but did not do so until November 1,
asserts that her motion was filed within one year of the
issuance of Amendment 794, which became effective on November
1, 2015. She believes that this is a new “fact”
rendering her motion timely under Section 2255(f)(4).
However, an amendment to a sentencing guideline is not a
“fact” that triggers Section 2255(f)(4). U.S.
v. Andrade, No. 1:13-CR-427, 2017 WL 35498 *2 (E.D. Cal.
Jan. 3, 2017); U.S. v. Bazaldua, Nos. 06-CR-100 and
16-CV-2479, 2016 WL 5858634 *1 (D. Minn. Oct. 5, 2016);
Altman v. U.S., Nos. C16-3097 and CR12-3010, 2016 WL
5219599 *2 (N.D. Iowa Sept. 21, 2016); Perez-Rodriguez v.
U.S., Nos. 3:16-CV-2341-L and 3:13-CR-440-L, 2016 WL
5875027 *1-2 (N.D. Tex. Aug. 16, 2016); see also Lo v.
Endicott, 506 F.3d 572, 574-76 (7th Cir. 2007) (in
reviewing a statute of limitations paralleling Section
2255(f), the court found that a change in law does not
constitute a change of “fact”). Ketelsen has thus
failed to establish that her motion was presented within the
applicable time limit.
noted in the Court's screening order, only two exceptions
exist which could change this result. However, Ketelsen makes
no reference to the first, the “actual innocence”
gateway. See (Docket #1). Even generously assuming
that her motion invokes the second, equitable tolling, the
Court sees no reason to apply that rule here. Id. at
6. Equitable tolling is “reserved for extraordinary
circumstances far beyond the litigant's control that
prevented timely filing.” Socha v. Boughton
(Socha II), 763 F.3d 674, 684 (7th Cir. 2014)
(quoting Nolan v. United States, 358 F.3d 480, 484
(7th Cir. 2004)). To be entitled to equitable tolling, a
petitioner bears the burden of establishing: “(1) that
[s]he has been pursuing h[er] rights diligently, and (2) that
some extraordinary circumstance stood in h[er] way and
prevented timely filing.” Socha II, 763 F.3d
at 683-84 (citing Holland v. Florida, 560 U.S. 631,
649 (2010); Tucker v. Kingston, 538 F.3d 732, 734
(7th Cir. 2008)) (internal quotation marks omitted).
Ketelsen's only reference to “diligent”
efforts is a March 2016 letter asking that the gun
enhancement be removed from her guideline calculation.
U.S. v. Ketelsen, 14-CR-112-7-JPS (E.D. Wis.)
(Docket #404). This has nothing to do with the instant
motion. Further, other than the argument regarding Amendment
794, which the Court rejected, Ketelsen asserts no
extraordinary circumstance preventing her from timely filing.
The Court's finding of untimeliness is, therefore,
undisturbed by any available exception.
under Rule 11(a) of the Rules Governing Section 2255 Cases,
“the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Ketelsen must make a
“substantial showing of the denial of a constitutional
right” by establishing that “reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). Further, when the Court has denied relief on
procedural grounds, the petitioner must show that jurists of
reason would find it debatable both that the “petition
states a valid claim of the denial of a constitutional
right” and that “the district court was correct
in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Because no reasonable jurists would
debate whether the petition should have been resolved in a
different manner, the Court is compelled to deny a
certificate of appealability as to Ketelsen's petition.
the Court closes with some information about the actions that
Ketelsen may take if she wishes to challenge the Court's
resolution of this case. This order and the judgment to
follow are final. A dissatisfied party may appeal this
Court's decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30
days of the entry of judgment. See Fed. R. App. P.
3, 4. This Court may extend this deadline if a party timely
requests an extension and shows good cause or excusable
neglect for not being able to meet the 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). Moreover, under
certain circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of
judgment. The Court cannot extend this deadline. See
Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See
Federal Rule of Civil Procedure 6(b)(2). A party is expected
to closely review all applicable rules and determine what, if
any, further action is appropriate in a case.
IT IS ORDERED that the motion to vacate, set
aside, or correct petitioner's sentence (Docket #1) be
and the same is hereby DENIED;
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED with prejudice; and
IS FURTHER ORDERED that a certificate of
appealability be and ...