USA v. Sylvester

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Criminal Action No. 23-cr-00057-CNS-1
(Civil Action No. 25-cv-00344-CNS)
UNITED STATES OF AMERICA,
v.
JARICE SYLVESTER,
Defendant.
ORDER
This matter is before the Court on the pro se “Motion to Vacate, Set Aside, or
Correct Sentence (Pursuant to 28 U.S.C. § 2255)” filed by Defendant Jarice Sylvester on
January 31, 2025. 1 ECF No. 42. The Court denies the 28 U.S.C. § 2255 motion.
I. 	SUMMARY FOR PRO SE DEFENDANT
You filed a motion to vacate your sentence pursuant to 28 U.S.C. § 2255. However,
these motions must be filed within one year of the conviction, with some exceptions.
Because you filed the motion more than one year after your conviction, and none of the
exceptions apply, the Court denies your motion. The Court will explain why it is doing so
below.
1 The Court must construe the motion liberally because Defendant is not represented by an attorney. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
However, the Court should not be an advocate for a pro se litigant. Hall, 935 F.2d at 1110.
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II. 	BACKGROUND
Defendant agreed to plead guilty to one count of Felon in Possession of a Firearm
and Ammunition in violation of 18 U.S.C. § 922(g)(1). Judgment was entered on October
10, 2023. See ECF No. 34. Defendant did not appeal. Defendant asserts one claim in the
§ 2255 motion arguing that his conviction is unconstitutional in light of the Supreme
Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
III. 	LEGAL STANDARD
Pursuant to 28 U.S.C. § 2255(f), a one-year limitation period applies to motions to
vacate, set aside, or correct a federal sentence. The one-year limitation period runs 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).
IV. 	ANALYSIS
Because Defendant did not file a direct appeal, his conviction became final when
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the time expired to file a direct appeal. See United States v. Prows, 448 U.S. 1223, 1227–
28 (10th Cir. 2006) (“If the defendant does not file an appeal, the criminal conviction
becomes final upon the expiration of the time in which to take a direct criminal appeal.”).
Pursuant to Rule 4(b)(1)(A)(i) of the Federal Rules of Appellate Procedure, a notice of
appeal in a criminal case must be filed within fourteen days after entry of the judgment.
Thus, Defendant’s conviction became final fourteen days after judgment was entered on
October 10, 2023, which was October 24, 2023.
Defendant 	does 	not 	contend 	that 	he 	was 	prevented 	by 	unconstitutional
governmental action from filing the § 2255 motion sooner, and it is apparent that he could
have discovered the facts supporting his claim before his conviction was final. See 28
U.S.C. § 2255(f)(2), (4). With respect to § 2255(f)(3), the Supreme Court’s decision in
Bruen did not create any new rights that are retroactively applicable to cases on collateral
review. In any event, even if the Supreme Court’s decision in Bruen could have delayed
the start of the one-year limitation period until that case was decided on June 23, 2022,
Defendant’s § 2255 motion filed on January 31, 2025, is still untimely. To the extent that
Defendant relies on lower court cases decided after Bruen, those cases are not Supreme
Court decisions and are not relevant to § 2255(f)(3). Finally, although not cited by
Defendant, the Court notes that the Supreme Court’s decision in United States v. Rahimi,
602 U.S. 680 (2024), also did not announce a new rule that is retroactively applicable to
cases on collateral review. See, e.g., Kraut v. United States, No. 3:24-cv-01804-K, No.
3:18-cr-462-K-1, 2024 WL 4544122, *3 (N.D. Tex. Oct. 22, 2024) (“The holdings in Rahimi
and Bruen did not announce a new rule that may be asserted retroactively on collateral
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review.”).
The one-year limitation period in 28 U.S.C. § 2255(f) is not jurisdictional and is
subject to equitable tolling. See United States v. Gabaldon, 522 F.3d 1121, 1124 (10th
Cir. 2008). Equitable tolling is appropriate “‘when an inmate diligently pursues his claims
and 	demonstrates 	that 	the 	failure 	to 	timely 	file 	was 	caused 	by 	extraordinary
circumstances beyond his control.’” Id. (quoting Marsh v. Soares, 223 F.3d 1217, 1220
(10th Cir. 2000)).
Defendant fails to allege any facts that demonstrate that he has diligently pursued
his claims, or that he was prevented from filing in a timely manner by extraordinary
circumstances beyond his control. Therefore, equitable tolling is not appropriate and the
§ 2255 motion will be denied as untimely.
Under Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United
States District Courts, a “district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Under 28 U.S.C. § 2253(c)(2), the
Court may issue a certificate of appealability “only if the applicant has made a substantial
showing of the denial of a constitutional right.” Such a showing is made only when “a
prisoner demonstrates ‘that jurists of reason would find it debatable’ that a constitutional
violation occurred, and that the district court erred in its resolution.” United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)). The Court will not issue a certificate of appealability because Defendant has
not made a substantial showing of the denial of a constitutional right.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
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this order would not be taken in good faith, and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962).
If Defendant files a notice of appeal, he also must pay the full $605 appellate filing fee or
file a motion to proceed in forma pauperis in the United States Court of Appeals for the
Tenth Circuit within thirty days, in accordance with Fed. R. App. P. 24.
V. CONCLUSION
Accordingly, it is
ORDERED that Defendant’s “Motion to Vacate, Set Aside, or Correct Sentence
(Pursuant to 28 U.S.C. § 2255),” ECF No. 42, is DENIED. It is
FURTHER ORDERED that no certificate of appealability will issue because
Defendant has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
DENIED without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED this 3rd day of February 2025.
BY THE COURT:
___________________ 	_______
Charlotte N. Sweeney
United States District Judge
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