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Case 2:11-cv-00038-RCJ-PAL Document 6 Filed 07/30/13 Page 1 of 5



UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA


vs.



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Case No.: 2:11-cv-00038-RCJ-PAL

ORDER



UNITED STATES OF AMERICA,

Plaintiff-Respondent,

KURT J. MYRIE, AKA Kurt James Myrie



Before the Court is Petitioner Kurt J. Myrie’s Motion for Extension of Time to File Initial

§ 2255 (#1). This motion was incorrectly filed in the United States District Court for the Central
District of California on December 16, 2010, and then transferred to this Court. For the reasons
provided herein, this Court dismisses Petitioner’s motion as moot.

Defendant-Petitioner.

Background

On December 21, 2007, Petitioner pled guilty to conspiracy to commit bank robbery,


armed bank robbery, and brandishing a firearm during and in relation to a crime of violence, all
arising in connection with a June 2006 robbery of Colonial Bank in Las Vegas, Nevada.
(Superseding Criminal Indictment (CR #36); see also Ninth Cir. Op. (CR #180) at 2).1 This
Court sentenced Petitioner to 194 consecutive months of imprisonment pursuant to his guilty
plea. (Judgment (CR #143) at 1-2).

May 2, 2008. (Notice of Appeal (CR #146)). The Ninth Circuit affirmed this Court’s sentence
on November 5, 2009. (Ninth Cir. Op. (CR #180) at 5-7). Petitioner did not appeal the Ninth
Circuit’s ruling to the U.S. Supreme Court. (Order (CR #195) at 3).

Petitioner appealed the aforementioned sentence to the Ninth Circuit Court of Appeals on


1 The bulk of Petitioner’s federal habeas corpus case is filed under case number 2:06-cr-00239-RCJ-PAL. This order
will cite to docket entries in that case as “CR #__.” However, when the United States District Court for the Central
District of California transferred the pending motion to this Court, the motion was filed under case number 2:11-cv-
00038-RCJ-PAL. This order will cite to docket entries in the transferred case as “# __.”



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Case 2:11-cv-00038-RCJ-PAL Document 6 Filed 07/30/13 Page 2 of 5



While incarcerated at FCI Adelanto in Adelanto, California, Petitioner filed a Motion for

Extension of Time to File Initial § 2255 Motion with the U.S. District Court for the Central
District of California. (Mot. to Extend (#1) at 1-2). Specifically, he requested at least 90 days
additional time to file a federal habeas petition under 28 U.S.C. § 2255. (Id. at 2). The
California federal district court clerk docketed his motion on December 16, 2010. (Id. at 1, 7).
On January 6, 2011, that Court transferred Petitioner’s case to this Court for want of jurisdiction.
(Transfer Order (#4) at 1-2).

On January 24, 2011, Petitioner filed a second motion to extend, this time with the

appropriate federal court, this Court, requesting an additional 30 days to file his § 2255 Motion
to Vacate because he had “just received his papers from his attorney.” (Mot. to Extend (CR
#185) at 1). Petitioner then filed a Motion to Vacate under § 2255 in this Court on August 9,
2011. (See Mot. to Vacate (CR #189)).

On July 11, 2012, this Court issued an order declining to rule on Petitioner’s motion to
extend and denying Petitioner’s motion to vacate on its merits. (See Mot. to Extend (CR #185);
see also Mot. to Vacate (CR #189); see also Order (CR #195) at 3, 19). The Court found that
Petitioner’s motion to vacate was due on February 3, 2011—one year after the Ninth Circuit’s
decision became final, for the purposes of 28 U.S.C. § 2255(f), on February 3, 2010. (Order (CR
#195) at 5). Petitioner submitted his motion August 9, 2011, roughly six months past the
deadline. (Id.; Mot. to Vacate (CR #189)).

While the Court generally dismisses untimely motions under § 2255, the Court found that
Petitioner’s motion for extension could have been considered based on the doctrine of equitable
tolling. See 28 U.S.C. § 2255(f); see also (Order (CR #195) at 4). However, the Court held that
“the issue of timeliness [was] ultimately moot because Petitioner’s motion under § 2255 plainly
[did] not entitle him to relief.” (Order (CR #195) at 3). Further, the Court noted that there was
no guiding precedent from the Ninth Circuit or the U.S. Supreme Court regarding the Court’s
discretion to extend the time for a petitioner to file a § 2255 motion. (Id. at 6). 2 In the order, the


2 A notable exception exists in United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004), where the Court found
that equitable tolling applies to § 2255 motions. However, in the July 2012 order, the Court found that equitable
tolling was ultimately irrelevant because the issue of timeliness did not require resolution. (Order (CR #195) at 8).

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Case 2:11-cv-00038-RCJ-PAL Document 6 Filed 07/30/13 Page 3 of 5



Court cited persuasive precedent from the Second Circuit Court of Appeals suggesting that the
Court lacked jurisdiction to consider Petitioner’s motion to extend because the claim did not
present a valid case or controversy, pursuant to Article III of the U.S. Constitution. See United
States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000); see also (Order (CR #195) at 6). The Court
also noted that while Rule 6 of the Federal Rules of Civil Procedure and Rule 45 of the Federal
Rules of Criminal Procedure both empowered this Court to grant an extension of time to file a
motion in some circumstances,3 the extension in Petitioner’s case could very well have been
inconsistent with Congress’s imposition of strict time limitations on § 2255 filings. See 28
U.S.C. § 2255(f) (establishing time restrictions for § 2255 motions); see also (Order (CR #195)
at 7). Thus, this Court ultimately declined to address the previous motion to extend because both
statutory and case law were unclear as to whether the Court had the power to grant such motions,
and because the Court found that it did not need to address the request for an extension because
Petitioner’s motion to vacate did not entitle him to relief. (See Order (CR #195) at 7-8, 10, 19;
see also Mot. to Extend (CR #185); see also Mot. to Vacate (CR #189)).

Discussion

The case before the Court involves a request for extension that has been adjudicated by

this Court in its July 2012 order, though the present motion was filed in a different court and
remained filed under a different docket number. (Compare Mot. to Extend (CR #185), with Mot.
to Extend (#1) at 1-2). Thus, this Court applies the same rationale here as it did in its July 2012
order, which declined to rule on the original motion to extend and denied Petitioner’s motion to
vacate on its merits. (Order (CR #195) at 19). The outstanding motion for extension at issue is
moot because there is no possibility that an extension could provide Petitioner relief on a claim
that has already been denied. See id.; see also (Mot. To Extend (#1) at 1-2)).

A motion to vacate under § 2255 must be filed in the district of conviction. Hernandez v.
Campbell, 204 F.3d 861, 865 (9th Cir. 2000); (Transfer Order (#4) at 2). If the court in which a
civil action is filed finds a want of jurisdiction, then the court shall transfer such action to any
other court in which the action could have been brought at the time it was filed. 28 U.S.C. §


3 Fed. R. Civ. P. 6(b); Fed. R. Crim. P. 45(b).



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Case 2:11-cv-00038-RCJ-PAL Document 6 Filed 07/30/13 Page 4 of 5



1631. A petition for review of administrative action—such as a habeas claim—falls into this
category. Id. In the event of transfer, the action shall proceed as if it had been filed in or noticed
for the court to which it is transferred on the date upon which it was actually filed in the incorrect
court. Id.

Here, Petitioner was convicted in this Court. (Judgment (CR #143) at 1-2).4 Therefore,
although Petitioner was incarcerated in California, he erred pursuant to Hernandez in filing the
first motion for extension with the U.S. District Court for the District of California. (Mot. to
Extend (#1) at 1-2). When that court transferred the case to this Court for appropriate
disposition, this Court did not enter the motion into case number 2:06-cr-00239-RCJ-PAL.
(Transfer Order (#4) at 1-2). Instead, the transferred motion remained filed under a separate case
number, and became an outstanding docket. (Compare Mot. to Extend (CR #185), with Mot. to
Extend (#1) at 1-2).

When Petitioner filed a second motion to extend in this Court—the correct jurisdiction—

this Court reviewed that second motion, filed under case number 2:06-cr-00239-RCJ-PAL.
(Mot. to Extend (CR #185)). In its July 2012 order, this Court declined to rule on that motion
because the issue of timeliness was moot in light of the denied motion to vacate. (Order (CR
#195) at 9, 19). Therefore, this Court finds that it already has adjudicated Petitioner’s request for
an extension of time to file his § 2255 in its prior July 2012 order. (Order (CR #195) at 19). As
such, the Court denies the transferred motion seeking an extension of time as moot in light of this
Court’s prior order discussing Petitioner’s other request for an extension of time.
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4 Case No. 2:06-cr-00239-RCJ-PAL



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Case 2:11-cv-00038-RCJ-PAL Document 6 Filed 07/30/13 Page 5 of 5



Conclusion

IT IS ORDERED that Petitioner’s Motion for Extension of Time to File Initial § 2255

DATED: This ______ day of July, 2013


(#1) is DISMISSED as MOOT.





_______ ___


United States District Judge

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DATED this 30th day of July, 2013.UNITED STATES DISTRIC JUDGE