Summary
The Tenth Circuit denied Lonnie Ray Wiseman’s request for a certificate of appealability and dismissed his appeal from the denial of his amended 28 U.S.C. § 2255 motion. The court held that his claim under Rosemond v. United States was untimely under § 2255(f), rejecting his argument that lack of legal materials or counsel extended the limitations period.
Topics
Practice areas
Questions Presented
- Whether Wiseman was entitled to a certificate of appealability to challenge the district court's determination that his Rosemond claim was untimely under 28 U.S.C. § 2255(f)(2).
- Whether the lack of legal training or appointed counsel constituted a government-created impediment that delayed commencement of the one-year limitations period under § 2255(f)(2).
Holdings
- Wiseman was not entitled to a certificate of appealability because no reasonable jurist could debate the district court's determination that his Rosemond claim was untimely.
- The lack of legal training or counsel is not a government-created impediment under 28 U.S.C. § 2255(f)(2).
Key quotations
“Because Wiseman has failed to satisfy the standard for issuance of a COA, we deny his request and dismiss this matter.” (at 1)
“A substantial showing means 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.”” (at 5)
“The lack of legal training or counsel is not an impediment under § 2255(f)(2).” (at 6)
Factual background
Wiseman was convicted of six Hobbs Act robberies and two § 924(c) firearm offenses arising from crimes involving a confederate carrying a Tec-9 firearm. His original sentence totaled 595 months, later reduced to 535 months after partial § 2255 relief and resentencing. He was incarcerated when Rosemond was decided in 2014, but his prison law library was not updated until September 2015, when current LEXIS materials became available. He filed his amended Rosemond claim in May 2017, more than one year after the asserted impediment was removed.
Procedural history
Wiseman was convicted in the District of New Mexico and received a total sentence of 595 months. The Tenth Circuit affirmed on direct appeal, and in 2002 it granted partial § 2255 relief, reducing one firearm sentence and remanding for resentencing; amended judgments reduced the total sentence to 535 months. After subsequent authorization proceedings concerning Johnson and Rosemond claims, the district court denied Wiseman's amended § 2255 motion, concluding that the Rosemond claim was untimely under § 2255(f) and, alternatively, meritless because any instructional error was harmless. The Tenth Circuit denied a COA and dismissed the matter.