UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CHARLES DENNIS FRIEDMAN, Defendant - Appellant. No. 19-4127 (D.C. Nos. 2:18 -CV-00906-RJS & 2:99-CR-00100-DB-1) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , BALDOCK , and CARSON , Circuit Judges.

________________ _________________ Petitioner Charles Friedman, a federa l prisoner appearing pro se, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or corre ct sentence. The district court dismissed the motion as untimely. Friedman now appeals. Exercising jurisdiction pursuant to 28 U.S.C. §1291, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 28, 2020 Christopher M. Wolpert Clerk of Court2 I We begin by summarizing the criminal proceedings that preceded Friedman’s filing of the instant § 2255 motion. Friedman , as this court noted in a 2007 decision, “is a serial bank robber.” United States v. Friedman , 554 F.3d 1301, 1302 (10th Cir. 2009) ( Friedman 2007 ). In 1986, Friedman robbed two banks—one in Utah and one in Arizona. Friedman was subsequently ch arged with and convicted of both crimes. He received a 20-year sentence for th e Utah robbery and a consecutive 3-year sentence for the Arizona robber y. Both of “these sentences were imposed under the law in effect prior to the existence of the Se ntencing Guidelines.” Id. at 1303 n.2. Friedman was paroled on June 13, 1998. At that time, he had approximately 2,911 days remaining to be served on the sentences. Shortly thereafter, Friedman resumed his criminal activitie s. In March of 1999, he was indicted in the United States District Court for the District of Utah on three counts of bank robbery that occurre d during a three-week period in late December 1998 and January 1999. In August 2000, Friedman entered into a plea agreement in which he pleaded guilty to one count in exchange for th e government dismissing the remaining two counts. In Paragraph 2 of the plea agreemen t, Friedman agreed, in pertinent part: “I understand that a term of supervised release will be added to any prison term imposed. If I violate the supervised releas e term, I can be returned to prison for the remainder of my sentence and for the full length of the supervis ed release term.” ROA, Vol. 1 at 19 (emphasis in original). In Paragraph 13(a) of the agreement, the3 government “agree[d] to recommend that [Friedman’s] prior convictions for bank robbery in 1986 be construe d as related offenses pursu ant to [the] United States Sentencing Guidelines because they were part of a common plan or scheme.” Id. at 20. The government “further agree[d],” in Paragraph 13( a) of the agreement, “to recommend that any sentence imposed on the in stant offense be se rved concurrently with any and all undischarged terms of im prisonment, including the remainder of the undischarged term of imprisonment due to the 1986 bank robberies.” Id. In October 2000, Friedman was senten ced to a term of imprisonment of 71 months, to be followed by a three-year term of supervised release. Id. at 27. The district court ordered the sent ence to run concurrently w ith any term of imprisonment that the United States Parole Commission might impose on Friedman for violating the terms of his parole. Following Friedman’s sentencing, the Parole Commission lodged a parole warrant as a detainer, but refused to ex ecute on the parole warrant until Friedman completed his sentence for the 1999 bank robbery. In December 2002, Friedman filed a § 2255 motion arguing that the Parole Commission was bound by, and in turn ha d violated, the 2000 plea agreement by not executing on the parole warrant and allowing Friedman to be released to its detainer against him in order to effectuate the c oncurrent sentence ordered by the district court. The Federal Bureau of Prisons in tu rn informed the distri ct court that it was unable to run Friedman’s sentence concurre ntly to whatever sentence the Parole Commission might impose when it ultimately ex ecuted its parole warrant. In May4 2003, the district court granted Friedman’s § 2255 motion and orde red that Friedman would be considered to have been released on October 17, 2000, to the custody of the United States Marshals Service pending th e Parole Commission’s further instruction and disposition of its pending warrant against Friedman. In doing so, the district court did not conclude that the Pa role Commission breached the 2000 plea agreement. On June 21, 2005, the district court vacated and withdrew its May 2003 order, and entered a new order reducing Friedman ’s sentence for the 2000 conviction from 71 months to one day of impr isonment, plus three years of supervised release. On June 24, 2005, the Parole Commissi on mandatorily released Friedman from custody. At that time, th ere were approximately 1, 195 days remaining on the sentences imposed for the 1986 bank robber y convictions. Friedman was placed on supervised release for the 2000 bank robber y conviction and remained on parole for the 1986 bank robberies and convictions. In November 2005, Friedman robbed a bank in Utah. He was indicted for that crime and also charged with violating the te rms of his supervised release. The case was transferred to the distri ct court judge that presided over Friedman’s earlier criminal proceedings, and consolidated with proceedings to revoke Friedman’s supervised release on the 2000 bank robbery c onviction. Friedman pleaded guilty to the November 2005 bank robbery, and to violating the terms of his supervised release. On March 1, 2007, the distri ct court sentenced Friedman to a belowguideline sentence of 57 months’ impr isonment for the 2005 bank robbery5 conviction, and a consecutive term of impr isonment of 24 months for the supervised release violations. 1 The government appealed, arguing th at the 57-month sentence for the 2005 bank robbery conviction was substantively unreasonable. This court agreed, concluding that “the district court abused its broad disc retion in significantly varying downward from the advisory Guid elines range to sentence Frie dman as if he were not a career offender.” Friedman 2007 , 554 F.3d at 1312. Accordingly, this court reversed the sentence imposed by the district court a nd remanded for resentencing. On remand, the case was assigned to a different j udge. At the resentencing hearing on July 22, 2011, the district court noted that Friedman’s criminal record was so extensive that he merite d a sentence of 188 months’ im prisonment, a term at the very top of the guidelines range. But the di strict court ultimately imposed a sentence of 151 months’ imprisonment in order to acc ount, in part, for the fact that Friedman faced a separate and consecutive prison term for violating the term of supervised release that he was serving in connecti on with his 2000 bank robbery conviction. Friedman appealed the 151-month sentence, arguing that it was both procedurally and substantiv ely unreasonable. On Oct ober 17, 2012, this court rejected Friedman’s arguments and affirmed the sentence. United States v. Friedman , 499 F. App’x 807, 808, 812 (10th Cir. 2012).

1 The presentence investigation repor t for the 2005 bank robbery conviction calculated an offense level of 29, a crimin al history category of VI, and a resulting sentencing range of 151 to 188 months.6 On June 19, 2013, the Parole Commissi on notified Friedman and the BOP that the Parole Commission would le t his detainer stand. In May 2018, Friedman moved to amend the § 2255 motion he filed in December 2002. In his motion, Friedman asserted that the Parole Commission was continuing to violate the 2000 plea ag reement by frustrating the government’s promised recommendation for concurrent serv ice of sentences. Re latedly, Friedman moved to set aside the judgment in the 2002 § 2255 proceeding so that he could amend his motion. In October 2018, the di strict court denied Friedman’s motions. Friedman did not appeal from that decision. On October 14, 2018, Friedman fini shed serving the 151-month sentence for the 2005 bank robbery and the consecutive 24-month sentence that was imposed for violating the term of supervised release in connection with his 2000 bank robbery conviction. On that same date, Friedman began serving the time that remained on his 1986 bank robbery sentences as a punishment for his paro le violations. Once that time is served, Friedman is sc heduled to begin serving his supervised release term for the 2005 robbery. II We now turn to the procedural history of Friedman’s current § 2255 motion. Friedman initiated these proceedings on Nove mber 20, 2018, when he filed a § 2255 motion in the district court. ROA, Vol. 1 at 6. Friedman alleged in his motion “that the acts or omissions of th e United States Parole Co mmission (USPC) frustrate[d] or otherwise violate[d] the pr omised recommendation by the government for concurrent7 service of his sentneces [sic], as . . . set fort h in the [2000] plea agreement” that pertained to his three bank ro bberies in 1998 and 1999. Id. at 7. More specifically, Friedman argued that the reference in the 2000 plea agreement to concurrent sentences also applied to the 24-month sentence that was imposed in 2007 for violation of the term of supervised re lease that he was serving for the 2000 bank robbery conviction. Friedm an alleged that his claim di d not ripen until the Parole Commission “execute[d] its violator wa rrant [on] October 14, 2018.” Id. at 13. Friedman asked the district court to “rem edy the [Parole Commission’s] breach of the plea agreement by vacating the 24-mont h [supervised rel ease] term [of imprisonment] it handed down in 2007 . . . and re-imposing a 1-day [supervised release] term [of imprisonment] in its place.” Id. at 35. On May 24, 2019, the district court issued a memorandum decision and order denying Friedman’s § 2255 motion as untimely. The district court also entered final judgment on that same date. On June 21, 2019, Friedman filed a mo tion to alter or amend the judgment. On August 16, 2019, the district court denied Friedman’s motion. Friedman filed a notice of appeal on Au gust 26, 2019. On September 9, 2019, Friedman filed a motion for certificate of appealability (COA). On November 4, 2019, the district court granted Friedman a COA.8 III We review the district court’s conclu sions of law, includi ng its determination that Friedman’s § 2255 motio n was untimely, de novo. See United States v. Barrett , 797 F.3d 1207, 1213 (10th Cir. 2015). Under 28 U.S.C. § 2255(f), “[a] 1-year period of limitation” applies to any motion filed under § 2255. That limit ation 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 m ovant was prevented from making a motion by such gove rnmental action; (3) the date on which the right asserted was initially reco gnized by the Supreme Court, if that right has be en newly recognized by the Supreme Court and made retroactively applicab le to cases on collateral review; or (4) the date on which the facts supporti ng the claim or claims presented could have been discov ered through the exerci se of due diligence. 28 U.S.C. § 2255(f). The judgment of conviction at issue is Friedman’s convicti on for the 2005 bank robbery. That judgment became final no later than 2012, follo wing this court’s affirmance of Friedman’s 151-month sentence. 2 Under the general limitation period set forth in § 2255(f)(1), Friedman ’s current motion filed Nove mber 20, 2018 is clearly untimely.

2 The 24-month consecutive sentence that was imposed for Friedman violating his term of supervised rele ase arguably became final in 200 7, when Friedman failed to challenge it in his initial appeal.9 Friedman effectively relies on § 2255(f)(4 ) to render his motion timely, arguing that his claim did not ripen until October 14, 2018, when he began serving the time that remained on his 1986 bank robbery sentences as a punishment for his parole violations. We conclude, however, that Friedman’s motion is not timely under § 2255(f)(4). As the district court noted, the record in this case establishes that on June 19, 2013, the Parole Commission noti fied Friedman that it intended to let his detainer stand. In other words, the Parole Co mmission notified Friedman on th at date that it intended to prevent his immediate release upon completion of his 151-month sentence for the 2005 robbery and the consecutive 24-m onth sentence for his violation of supervised release in connection with his 2000 robbery conviction. The district cour t concluded, and we agree, that this June 9, 2013 notice was sufficient to reasonably give rise to the claim now asserted by Friedman in his § 2255 motion. Thus, Friedman had one year from that date, or until approximately June 9, 2014, to assert the claim he now seeks to assert in his § 2255 motion. Finally, even assuming that Friedman’s § 2255 motion was somehow timely, it is apparent from the record that it lacks merit. Nothing in the 2000 plea agreement could reasonably be construed as guaranteeing Friedman that the sentence imposed by the Parole Commission would run conc urrently with any sentence he might receive if he violated the term of supervised release that was imposed for his 2000 robbery conviction. Indeed, for us to construe the 2000 plea ag reement in that manner, we would have to conclude that the parties anticipated that Fr iedman, following the co mpletion of the term of imprisonment imposed for the 2000 robb ery conviction, would commit new crimes10 and violate his term of superv ised release. The terms of the plea agreement, however, indicate otherwise. For example, Friedman expressly acknowledg ed in the agreement that, if he violated his term of supervised re lease, he could “be retu rned to pris on for the remainder of [his] sentence and for the full lengt h of the supervised release term.” ROA, Vol. 1 at 19 (emphasis in original). Moreov er, the two sentences that were imposed by the district court following Friedman’s 20 05 robbery conviction, including the 24-month sentence for violating his term of supervised release, were not ordered by the district court to run concurrently with any sentence remaining to be served for his 1986 robbery convictions. AFFIRMED.

Entered for the Court
Mary Beck Briscoe Circuit Judge