Gurule v. USA, No. 2:2021cv00344 - Document 36 (D. Utah 2023)
Court Description: MEMORANDUM DECISION AND ORDER denying and dismissing 1 Motion to Vacate, Set Aside or Correct Sentence (2255) without prejudice. Petitioner is also denied a certificate of appealability. Signed by Judge David Nuffer on 11/2/23 (alt)
Download PDF
<![CDATA[
Gurule v. USA Doc. 36 THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH THOMAS RAY GURULE, Movant, v. MEMORANDUM DECISION AND ORDER DENYING AND DISMISSING § 2255 MOTION Case No. 2:21-cv-00344-DN (Criminal No. 2:04-cr-00209-DN-1) UNITED STATES OF AMERICA, District Judge David Nuffer Respondent. Movant Thomas Ray Gurule filed a motion seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (“§ 2255 Motion”). 1 This is Mr. Gurule’s second attempt to obtain relief from his sentence under § 2255. 2 He argues 3 that his sentence is unconstitutional in light of the Supreme Court’s holding in United States v. Davis. 4 Mr. Gurule’s § 2255 Motion was initially denied and dismissed without prejudice for being untimely. 5 However, the Tenth Circuit Court of Appeals reversed that determination after the government changed its position regarding timeliness and conceded that remand was appropriate. 6 1 Motion for Authorization to File a Second or Successive Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 by a Prisoner in Federal Custody (“Second § 2255 Motion”), docket no. 1, filed Nov. 27, 2019. 2 Mr. Gurule’s first attempt at obtaining relief under § 2255 was denied and dismissed without prejudice. Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“First § 2255 Motion”), docket no. 1 in Gurule v. United States, 2:16-cv-00625-DN (D. Utah) (“First § 2255 Case”), filed June 10, 2016; Judgment in a Civil Case, docket no. 11 in First § 2255 Case, filed July 10, 2018. 3 § 2255 Motion at 8, 15-18. 4 139 S. Ct. 2319 (2019). 5 Memorandum Decision and Order Denying and Dismissing § 2255 Motion, docket no. 14, filed Nov. 18, 2021; Judgment in a Civil Case, docket no. 15, filed Nov. 18, 2021. 6 Order and Judgment, docket no. 22, filed May 11, 2023. Dockets.Justia.com Following the remand, a briefing schedule on the § 2255 Motion was set. 7 And on October 31, 2023, Mr. Gurule filed his initial brief supplementing his § 2255 Motion. 8 Mr. Gurule concedes in his brief that after reviewing the record of his conviction and sentence, he was not subject to any Davis error. 9 This is because the clear record demonstrates that the prior convictions on which Mr. Gurule’s sentence relied were applied under the enumerated offenses clause of 18 U.S.C. § 3559, and not § 3559’s residual clause. 10 Therefore, Mr. Gurule conceded that he is not entitled to relief under § 2255 and requested that his § 2255 Motion be denied. Based on Mr. Gurule’s concession that clear record demonstrates that he is not entitled to relief under § 2255, Mr. Gurule’s § 2255 Motion 11 is DENIED and DISMISSED with prejudice. ORDER IT IS HEREBY ORDERED that Mr. Gurule’s § 2255 Motion 12 is DENIED and DISMISSED with prejudice. This dismissal does not preclude Mr. Gurule from seeking future relief under § 2255 upon the Supreme Court’s recognition of a new right that is applicable to him or his sentence 13 and the Tenth Circuit Court of Appeals authorizing the filing of a successive § 2255 motion. 14 7 Scheduling Order, docket no. 25, filed May 26, 2023. Mr. Gurule was granted four extensions of time to file his initial brief supplementing his § 2255 Motion. Docket Text Order, docket no. 28, filed July 6, 2023; Docket Text Order, docket no. 30, filed Aug. 21, 2023; Docket Text Order, docket no. 32, filed Aug. 29, 2023; Docket Text Order, docket no. 34, filed Oct. 2, 2023. 8 Supplemental Memorandum Regarding Motion to Vacate Under § 2255, docket no. 35, filed Oct. 31, 2023. 9 Id. at 1. 10 Id. at 1-3. 11 Docket no. 1, filed Nov. 27, 2019. 12 Docket no. 1, filed Nov. 27, 2019. 13 28 U.S.C. § 2255(f)(3). 14 Id. § 2255(h). 2 IT IS FURTHER ORDERED that, pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, Mr. Gurule is DENIED a certificate of appealability. The Clerk is directed to close the case. Signed November 2, 2023. BY THE COURT ________________________________________ David Nuffer United States District Judge 3
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
