United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOVANT'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE 
J. Tarnow Senior U.S. District Judge
February 7, 2012, Movant Ryan Zundel pled guilty to an
Information charging two counts of conspiracy, 18 U.S.C.
§ 371, related to a mortgage fraud scheme, pursuant to a
Rule 11 Plea Agreement . Judge Cook sentenced Mr. Zundel
to two consecutive five-year terms of imprisonment on
February 12, 2013. Judgment  was entered on March 6,
Zundel filed a Motion to Abate for Lack of Subject Matter
Jurisdiction and Lack of Standing, or, in the Alternative,
Motion Pursuant to 18 U.S.C. 3742 -Sentence Imposed in
Violation of Law  on May 6, 2016. The Court entered an
Order  characterizing Mr. Zundel's motion as a
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
22 U.S.C. § 2255 on July 28, 2016. The Court also
summarily dismissed in part Mr. Zundel's Motion to Vacate
and ordered the Government to respond to the remaining
portion of the Motion to Vacate - namely, Movant's
argument that the Government violated the Speedy Trial Act.
§ 2255 Statute of Limitations
petitioner seeking relief under 28 U.S.C. § 2255 is
bound by the one-year period of limitation, which runs from
“the latest of the date on which the judgment of
conviction becomes final . . .” 28 U.S.C. §
2255(f)(1). Generally, for the purposes of the statute,
“convictions become final upon conclusion of direct
review.” Sanchez-Castellano v. United States,
358 F.3d 424, 426 (6th Cir. 2004). However, “[w]hen a
federal criminal defendant appeals to the court of appeals,
the judgment of conviction becomes final . . . upon the
expiration of the ninety-day period in which the defendant
could have petitioned for certiorari to the Supreme Court,
even when no certiorari petition is filed.” Johnson
v. United States, 457 F. App'x 462, 464 (6th Cir.
2012); Clay v. United States, 537 U.S. 522, 532
Zundel filed his Notice of Appeal  on March 6, 2013. In
its February 27, 2014 Opinion , the Sixth Circuit
affirmed the 120-month sentence and remanded the issue of
restitution. The Mandate  was issued on March 24, 2014.
Supreme Court has explicitly “rejected the argument
that, if a petitioner declines to seek certiorari, the
limitations period starts to run on the date the court of
appeals issues its mandate.” Gonzalez v.
Thaler, 132 S.Ct. 641, 653 (2012) (citing Clay,
537 U.S. at 529)); see also United States v. Garcia,
210 F.3d 1058, 1061 n.6 (9th Cir. 2000) (“The time to
file a petition for a writ of certiorari runs from the date
of entry of the judgment or order sought to be reviewed, and
not from the issuance date of the mandate.”).
Therefore, the statute of limitations on Mr. Zundel's
§ 2255 motion expired on May 27, 2015, one year and
ninety days after the Sixth Circuit issued its judgment.
See United States v. Smith, No. 12-cr-20095, 2016 WL
491837, at *1 (E.D. Mich. Jan. 8, 2016), report and
recommendation adopted, No, 12-cr-20095, 2016 WL 465479
(E.D. Mich. Feb. 8, 2016). Because Mr. Zundel did not file
his motion until May 6, 2016, his claim is time-barred.
Speedy Trial Act
arguments under the Speedy Trial Act are likewise invalid.
First, the Act states that if a defendant fails “to
move for dismissal prior to trial or entry of a plea of
guilty or nolo contendere, ” he waives his right to
dismissal under § 3162(a)(2) of the Speedy Trial Act. 18
U.S.C. § 3162(a)(2). Mr. Zundel never moved for
dismissal on Speedy Trail Act grounds prior to entry of his
guilty plea, and his argument is therefore meritless. See
United States v. Richards, 393 Fed.Appx. 266, 269 (6th
Cir. 2010) (unpublished).
Speedy Trial Act provides that if a defendant enters a plea
of not guilty, he must be tried within 70 days after the
later of the filing of the indictment or the defendant's
original appearance before a judicial officer. 18 U.S.C.
§ 3161(c)(1). “[W]here the defendant makes an
appearance before the indictment, the indictment starts the
running of the speedy trial period, and not a later
arraignment and not guilty plea.” United States v.
Medina-Espinoza, 502 F. App'x 501, 502 (6th Cir.
2012) (citing United States v. Lopez-Valenzuela, 511
F.3d 487, 489-92 (5th Cir. 2007)). Defendant made his initial
appearance on the complaint in this case on June 17, 2010.
Defendant was first indicted in a Third Superseding
Information  filed August 2, 2011. He entered a plea of
not guilty at his arraignment on January 24, 2012, and
subsequently pled guilty on February 7, 2012.
Mr. Zundel and the government point out, the parties engaged
in months of extensive plea negotiations. The parties entered
into several Stipulated Orders [38, 42, 48, 50, 52, 54,
59-62] in which they agreed that the period of time between
July 6, 2010 and August 2, 2011 should “be excluded in
computing the time in which an indictment must be
filed” because plea negotiations qualify as a
miscellaneous “other proceeding[s] concerning the
defendant.” 18 U.S.C. § 3161(h)(1). United
States v. Bowers, 834 F.2d 607) (6th Cir. 1987) (per
curiam) (explaining that the “plea bargaining process
can qualify as one of many ‘other
proceedings'” not listed in § 3161 (h)(1)
which may be excluded from the Speedy Trial Act calculation);
see also United States v. Dunbar, 357 F.3d 582, 593
(6th Cir. 2004), vacated and remanded on other
grounds, Dunbar v. United States, 543 U.S. 1099
reasons stated above, the Court will DENY Movant's Motion
to Vacate, Set Aside, or Correct his Sentence. Movant's
current 120-month sentence will remain intact. Accordingly,
IT IS ORDERED that Movant's Motion to Vacate, Set Aside,