Elgin v. USA, No. 2:2022cv00576 - Document 3 (D. Utah 2022)
Court Description: MEMORANDUM DECISION AND ORDER DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255. Defendant has been time-barred from filing a § 2255 petition for well over a year, and the court again finds that Defendant is not ent itled to equitable tolling. Defendant's Petition Under 28 U.S.C. § 2255 for ineffective assistance of counsel is DENIED and DISMISSED, and the court declines to issue a certificate of appealability because Defendant has not made a substantial showing that he was denied a constitutional right. Signed by Judge Dale A. Kimball on 9/14/2022. (eat)
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Elgin v. USA Doc. 3 Case 2:22-cv-00576-DAK Document 3 Filed 09/14/22 PageID.10 Page 1 of 2 UNITED STATES DISTRICT COURT DISTRICT OF UTAH TIMOTHY JON ELGIN, Plaintiff, MEMORADUM DECISION AND ORDER DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255 vs. Case No. 2:22CV0576 DAK UNITED STATES OF AMERICA, Judge Dale A. Kimball Defendant. This matter is before the court on Defendant Timothy Jon Elgin’s Petition Under 28 U.S.C. § 2255 petition for ineffective assistance of counsel. The court dismisses Defendant’s Petition. On February 11, 2020, Defendant entered a guilty plea and signed a Statement in Advance of Plea. On June 29, 2020, this court sentenced Defendant to 240 months imprisonment. On that same day, a Judgment in a Criminal Case was entered. 1 Defendant did not appeal, and therefore his Judgment became final fourteen days later, 2 on July 13, 2020. The oneyear statute of limitations expired one year later, on July 13, 2021. Defendant has been timebarred from filing a § 2255 petition since that date. Almost seven months after the statute of limitations expired, on February 10, 2022, Defendant filed a Motion for Extension of Time to file a § 2255 petition, arguing that he was entitled to equitable tolling of the statute of limitations. The court denied the motion on February 1 2:20CR00048 DAK, ECF No. 26. 2 See Fed. R. App. P. 4 (b)(1)(A)(i). In the court’s previous order on the motion for an extension of time, the court mistakenly noted that Defendant had thirty days—instead of fourteen days—to appeal. Dockets.Justia.com Case 2:22-cv-00576-DAK Document 3 Filed 09/14/22 PageID.11 Page 2 of 2 16, 2022. 3 Nevertheless, on September 6, 2022, over six months after having been denied an extension of time based on equitable tolling, Defendant filed the instant petition. Defendant has been time-barred from filing a § 2255 petition for well over a year, and the court again finds that Defendant is not entitled to equitable tolling. Defendant’s Petition Under 28 U.S.C. § 2255 for ineffective assistance of counsel is DENIED and DISMISSED, and the court declines to issue a certificate of appealability because Defendant has not made a substantial showing that he was denied a constitutional right. 4 DATED this 14th day of September, 2022. BY THE COURT: DALE A. KIMBALL United States District Judge 3 4 2:20CR00048 DAK, ECF No. 31. See 28 U.S.C. § 2253(c)(2).
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