Opinion
EP-05-CA-0361-PRM, EP-03-CR-1918-PRM.
December 15, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Francisco Zamora's ("Zamora") pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" ("Motion to Vacate"), filed on September 26, 2005. For the reasons discussed below, the Court finds that Zamora's Motion to Vacate is untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") and that he is not entitled to equitable tolling of the limitations period. The Court will accordingly dismiss Zamora's Motion to Vacate with prejudice pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings. The Court will additionally deny Zamora a Certificate of Appealability.
I. BACKGROUND A. Criminal Cause No. EP-03-CR-1918-PRM
On October 15, 2003, the Grand Jury sitting in El Paso, Texas returned a two-count Indictment against Zamora, charging him with importing 100 kilograms or more of marijuana, a controlled substance, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(2)(G) (Count One); and possessing this same quantity of marijuana with the intent to distribute it, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii) (Count Two). Zamora decided to forego trial, choosing instead to accept a plea bargain in which he agreed to plead guilty to Count One of the Indictment and other concessions in return for the Government's dismissal of Count Two. Accompanied by retained counsel, Zamora accordingly appeared by consent before a United States Magistrate Judge on December 22, 2003 and pleaded guilty to Count One of the Indictment. The Magistrate Judge entered findings of fact that same day, recommending that the Court accept Zamora's plea.
Adopting the Magistrate Judge's recommendation, the Court accepted Zamora's guilty plea on January 6, 2004 and deferred sentencing to allow for the preparation of a Presentence Report. The Court entered Judgment on March 30, 2004, sentencing Zamora to a 37-month term of imprisonment and a 2-year term of non-reporting supervised release. The Court additionally imposed a $300 fine and a $100 special assessment. On April 14, 2004, the Court sua sponte entered an Amended Judgement in which it corrected a typographical error in the reported date of sentencing. Zamora did not appeal.
The original Judgment erroneously stated that Zamora had been sentenced on March 25, 2003, rather than on March 25, 2004.
B. Zamora's First Motion to Vacate (Civil Cause No. EP-05-CA-069-PRM)
Zamora, who was then confined at FCI-La Tuna in Anthony, New Mexico, filed a pro se "Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" ("First Motion to Vacate") [Docket No. 37] on March 1, 2005. In an Order dated March 8, 2005, the Court informed Zamora that his First Motion to Vacate was deficient in two respects. First, the Court advised Zamora that he had submitted his claims on a version of pre-printed forms that was no longer in use in the El Paso Division. Second, and more importantly, the Court informed Zamora that he had failed to sufficiently state the facts underlying each of his claims. The Court accordingly gave Zamora until April 8, 2005 to resubmit his claims on pre-printed forms currently in use in the El Paso Divison, which the District Clerk would supply, and directed him to fill out the form completely, providing all the information sought therein to the best of his ability, including the specific facts supporting his claims for relief.
Zamora's April 8, 2005 deadline passed without a response. On April 21, 2005, the Court therefore entered an Order directing Zamora to show cause by May 12, 2005 why his First Motion to Vacate should not be dismissed for failure to prosecute. Zamora's period for response expired without action. On May 18, 2005, the Court accordingly dismissed Zamora's First Motion to Vacate without prejudice for failure to prosecute.
Shortly thereafter, the District Clerk mailed copies of the Court's Order dismissing the action and its Final Judgment to Zamora at FCI-La Tuna, his address of record. On May 23, 2005, the envelope containing the latter documents was returned to the District Clerk, marked "unclaimed/refused."
C. Zamora's Correspondence
On June 23, 2005, the District Clerk received a letter from Zamora, dated June 17, 2005. Therein, Zamora informed the District Clerk that his address had changed due to his transfer from FCI-La Tuna to the Eden Detention Center located in Eden, Texas. Zamora also inquired about the status of his First Motion to Vacate, stating that, as of the date of his letter, he had not received any word regarding it, other than a certified mail return receipt indicating that the motion had been received by the District Clerk.
A handwritten note in the top right-hand corner of Zamora's correspondence states that, on June 24, 2005, in response to Zamora's letter, District Clerk's office personnel updated Zamora's address and sent him courtesy copies of his "filed"-stamped First Motion to Vacate, the Court's March 8, 2005 Order to cure the deficiencies in his motion, the Court's April 21, 2005 Order directing Zamora to show cause why his First Motion to Vacate should not be dismissed for failure to prosecute, the Court's May 18, 2005 Order dismissing the case, and the Court's Final Judgment.
On July 13, 2005, the Court itself received a letter from Zamora, dated July 1, 2005, which it referred to the District Clerk's Office for response. In his letter, Zamora stated that he had just learned that his case had been dismissed and asserted that he never received any of the Court's Orders directing him to cure the deficiencies in his First Motion to Vacate.
The District Clerk's Office responded by letter dated July 15, 2005. Therein, it informed Zamora that it understood his letter to express a desire to challenge the Court's dismissal of his First Motion to Vacate. It informed Zamora that he must seek legal relief from the Court's Judgment in the form of a motion or other pleading contemplated by the Federal Rules of Civil Procedure or Criminal Procedure and present it to the District Clerk (rather than the Court) for filing. The District Clerk's Office also informed Zamora that, in the alternative, because the Court dismissed his First Motion to Vacate without prejudice, he could file a new Motion to Vacate pursuant to 28 U.S.C. § 2255. Without advising Zamora how to proceed, the District Clerk's Office enclosed a blank form Motion to Vacate for him to use if he wished to submit a new Motion to Vacate. Zamora subsequently filed his instant Motion to Vacate on September 26, 2005. II. MOTIONS TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, relief under 28 U.S.C. § 2255 is "reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (internal citations omitted).
Moreover, "when raising issues of jurisdictional or constitutional magnitude for the first time on collateral review, a defendant ordinarily must show both cause for his procedural default and actual prejudice resulting from the error." This cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard applied on direct appeal." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
Gaudet, 81 F.3d at 589.
Id.
See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992) (stating that the general rule in the Fifth Circuit is that, except in rare instances where the record on direct appeal is adequate to evaluate such a challenge, an ineffective assistance of counsel claim cannot be resolved on direct appeal because no opportunity existed for the parties to develop the record on the merits of the allegations).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that "if it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for summary dismissal and cause the movant to be notified." III. THE TIMELINESS OF ZAMORA'S MOTION TO VACATE UNDER THE AEDPA
U.S.C.S. § 2255 Proc. R. 4(b) (2004).
In the AEDPA, Congress established a one-year limitation period for filing a motion to vacate sentence pursuant to § 2255. The AEDPA added a specific period of limitation provision governing motions to vacate, set aside, or correct sentences, which states:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run 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.A. § 2255 ¶ 6 (West Supp. 2004).
Although the AEDPA describes four different events which could trigger the limitations period, the relevant time, for purposes of Zamora's claims, is the date on which his Judgment became final. Here, because Zamora did not appeal, Judgment became final on April 24, 2004, ten days after entry. Zamora therefore had until April 24, 2005 to file a Motion to Vacate pursuant to 28 U.S.C. § 2255. Zamora, however, could not have filed his instant Motion to Vacate any earlier than September 13, 2005, the date on which he signed it. His Motion to Vacate is thus untimely by over four months.
See 28 U.S.C. § 2255 ¶ 6(1) (stating that the statute of limitations begins to run on the date that judgment becomes final); cf. 28 U.S.C. § 2255 ¶ 6(3) (stating that the limitations period begins to run on the date that the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized and made retroactively applicable to cases on collateral review).
See FED.R.CRIM .P. 4(b)(1)(A) (explaining that, in a criminal case, a defendant's notice of appeal must be filed within ten days after the entry of judgment or the order being appealed, or within ten days after the filing of the government's notice of appeal, whichever occurs later).
IV. EQUITABLE TOLLING A. Legal Standard
The AEDPA's one year statute of limitations is not jurisdictional and is thus subject to equitable tolling. Equitable tolling, however, is justified only in rare and exceptional circumstances. Such relief will not be granted where the petitioner failed to diligently pursue his rights. Similarly, a petitioner's ignorance or mistake is insufficient to warrant equitable tolling. Equitable tolling is warranted only in situations where a petitioner is actively misled by the respondent or is prevented in some extraordinary way from asserting his rights. "The decision to invoke equitable tolling is left to the discretion of the district court" and reviewed only for an abuse of discretion. B. Discussion
Cousin v. Lensing, 310 F.3d 843, 847-48 (5th Cir. 2002); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000).
Cousin, 310 F.3d at 848.
Larry v. Dretke, 361 F.3d 890, 897 (5th Cir. 2004).
Cousin, 310 F.3d at 849.
Salinas v. Dretke, 354 F.3d 425, 429 (5th Cir. 2004), cert. denied, 541 U.S. 1032 (2004).
Cousin, 310 F.3d at 848.
Zamora concedes that he has filed his instant Motion to Vacate more than one year after his Judgement became final. Zamora implicitly argues, however, that he is entitled to equitable tolling of the limitations period because he was transferred to another institution soon after filing his initial Motion to Vacate and did not receive the Court's orders instructing him to cure its deficiencies until after the matter had already been dismissed for failure to prosecute.
Pet'r's Mot. to Vacate 13 ¶ 18.
To determine whether Zamora diligently pursued his claims such that he might be entitled to equitable tolling, on November 17, 2005, the Court entered an Order directing Zamora to answer certain interrogatories regarding the date of his transfer from FCI-La Tuna ("La Tuna"), located in Anthony, Texas, to the Eden Detention Center, located in Eden, Texas. In response to the Court's interrogatories, Zamora asserts that learned on March 4, 2005 that he would be moved from La Tuna to another facility on or about March 7, 2005. Zamora states that he was actually transferred from La Tuna at 6:00 a.m. on March 9, 2005 and arrived at the Eden Detention Center at approximately 11:30 p.m. the same day. According to Zamora, no reason was given for his transfer, and he did not know that his ultimate destination would be the Eden Detention Center until he ultimately arrived there.
Pet'r's Resp. to Interrogs. ¶ 3.
Id. at ¶¶ 1 2.
Id. at ¶ 4.
Id. at ¶ 6.
By Zamora's own admission, he arrived at his new institution on March 9, 2005. Despite knowing that he had a legal matter pending before the Court, Zamora nevertheless waited 100 days, until June 17, 2005, to inform the District Clerk that his address had changed. While the transfer itself appears to have been beyond Zamora's control ( i.e., there is no evidence that Zamora's own misconduct prompted his redesignation to the Eden Detention Center), the Court finds that Zamora's tardiness in notifying the District Clerk of his whereabouts negates a finding that he pursued his legal claims with the level of diligence that is a prerequisite for the award of relief in the form of equitable tolling. Given Zamora's lack of diligence, the Court concludes that he is not entitled to equitable tolling and will accordingly dismiss his Motion to Vacate with prejudice as untimely.
V. CERTIFICATE OF APPEALABILITY
The AEDPA converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review solely to those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998) (stating that the CoA requirement supersedes the previous requirement for a CPC to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997) (explaining that the CoA requirement replaced the formerly required CPC).
Miller-El v. Cockrell, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002) (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (stating that a CoA is granted on an issue-by-issue basis); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that, in regard to the denial of relief in habeas corpus actions, the scope of appellate review is limited to the issues on which a CoA is granted).
See Crutcher, 301 F.3d at 658 n. 10 (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Lackey, 116 F.3d at 151 (holding that, in the context of a challenge to a district court's order denying habeas corpus relief, the scope of appellate review is limited to the issues on which a CoA is granted); Hill, 114 F.3d at 80 (discussing the limited scope of appellate review in habeas corpus actions); Muniz, 114 F.3d at 45 (explaining the limitations upon the scope of appellate review in habeas corpus cases); Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997) (discussing the limited scope of appellate review in habeas corpus actions); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2004) (setting forth the narrow scope of appellate review in habeas corpus matters).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If the Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge the Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether the Court was correct in its procedural ruling. The Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El, 537 U.S. at 327.
Miller-El, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Zamora's pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding Zamora's claims for relief.
VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Francisco Zamora-Torres' Motion to Vacate pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Francisco Zamora-Torres' pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody," filed on September 26, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Francisco Zamora-Torres is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.