Opinion
CV-21-01687-PHX-SMB (DMF) CR-19-50107-PHX-SMB
01-25-2022
United States of America, Plaintiff, v. Andres Gonzalez-Hernandez, Defendant/Movant.
TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Deborah M, Fine, United States Magistrate Judge.
On September 27, 2021, Defendant/Movant Andres Gonzalez-Hernandez filed a pro per Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”) (Doc. 1). The Court required a response (Doc. 3). Plaintiff timely responded on November 24, 2021 (Doc. 4). No. reply has been filed and the time for reply has expired (see Docs. 3, 4). 1
Rule 3(d) of the Rules Governing § 2255 Proceedings “codifie[d] the prison mailbox rule, which states that a motion or other paper submitted by a prisoner is deemed filed as of the date he submits it to prison authorities for mailing if certain conditions are met.” United States v. Winkles, 795 F.3d 1134, 1145-46 (9th Cir. 2015). The § 2255 Motion contains Movant's signed declaration that he placed the § 2255 Motion in the prison mailing system on September 27, 2021 (Doc. 1 at 13; see also envelope at Doc. 1-1).
Citations to the record indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona. Citations to documents within Movant's criminal case CR-19-50107-PHX-SMB are denoted as “CR Doc.” Citations to documents in Movant's instant § 2255 matter CV-21-01687-PHX-SMB (DMF) are denoted simply as “Doc.”
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 3 at 4). For the reasons set forth below, it is recommended that the § 2255 Motion be dismissed without an evidentiary hearing because the § 2255 Motion is untimely, and it is further recommended that a certificate of appealability be denied.
I. PROCEDURAL HISTORY
Pursuant to a plea agreement, Defendant/Movant pleaded guilty to reentry of a deported alien in the United States District Court for the Southern District of Texas (CR Doc. 1-2). On March 29, 2016, the United States District Court for the Southern District of Texas sentenced Movant to a 54-month term of imprisonment followed by 3 years of supervised release (Doc. 1-2; Doc. 1-3 at 11). No. appeal was filed (Doc. 1-3 at 11-12).
On April 26, 2019, a Petition to Revoke Supervised Release was filed in the sentencing court (CR Doc. 3). On June 19, 2019, jurisdiction over Defendant/Movant's supervised release and the petition to revoke were transferred to this Court (CR Doc. 1). On August 16, 2019, Defendant/Movant admitted to a supervised release violation (CR Doc. 12). On November 25, 2019, the Court revoked Defendant/Movant's supervised release and sentenced him to a 22-month term of imprisonment, to be served consecutively to his sentence in CR-19-00691-PHX-SMB (CR Docs. 17, 18). On the following day, November 26, 2019, the Court issued an Order reflecting the revocation and disposition which had been pronounced on November 25, 2019 (Doc. 18). No. appeal was filed.
Defendant/Movant pleaded guilty to one count of Reentry of Removed Alien and was sentenced to a 30-month term of imprisonment, followed by 3 years' supervised release. United States v. Andres Gonzalez-Hernandez, CR-19-00691-PHX-SMB (D. Ariz. 2019). No. appeal was filed in that matter.
In the month before the filing the instant § 2255 Motion, Defendant/Movant filed a motion in his criminal case in which Defendant asked that his conviction be set aside based on the law of the case doctrine, citing United States v. Carrillo-Lopez, No. 3:20-cr-00026-MMD-WGC, 2021 U.S. Dist. LEXIS 155741 (D. Nev. Aug. 18, 2021) (CR Doc. 19). Judge Brnovich denied the motion, stating: 2
Defendant argues that the Court must vacate his sentence because of the ruling in United States v. Carrillo-Lopez No. 3:20-cr-00026-MMD-WGC, 2021 U.S. Dist. LEXIS 155741 (D. Nev. Aug. 18, 2021). Generally, “[t]he law of the case doctrine states that the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case.” Jeffries v. Wood, 114 F.3d 1484, 1489 & n.1 (9th Cir. 1997) (en banc) (internal quotation omitted), overruled by Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (limiting application of Jeffries to law of the case rather than law of the circuit). Under the law of the case doctrine, the ruling in Carrillo-Lopez is only binding to subsequent pleadings in Carillo-Lopez and not to Defendant's case.(CR Doc. 24 at 1).
II. THE § 2255 MOTION
In the § 2255 Motion, Defendant/Movant asserts (1) that the Court must dismiss an indictment charging the offense of illegal reentry based on equal protection grounds, citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) (Doc. 1 at 4); and (2) that the Supreme Court has held that the definition of “illegal reentry” is unconstitutionally void for vagueness, citing United States v. Carrillo-Lopez, No. 3:20-cr-00026-MMD-WGC, 2021 WL 3667330, 2021 U.S. Dist. LEXIS 155741 (D. Nev. Aug. 18, 2021), which is not a United States Supreme Court case (Doc. 1 at 5).
Plaintiff requests that the Court deny the movant's claim for relief because Defendant/Movant specifically waived his right to file the § 2255 Motion by accepting the plea agreement and because the § 2255 Motion is untimely (Doc. 3 at 1).
III. TIMELINESS
Whether the § 2255 Motion is time-barred by the statute of limitations is a threshold issue for the Court. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Defendant/Movant's § 2255 Motion because it was filed after April 24, 1996, the effective date of the AEDPA. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). 3
A. Statute of Limitations Period
AEDPA establishes a one-year limitations period for federal prisoners to file a motion collaterally attacking their convictions. 28 U.S.C. § 2255(f). The limitations 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 government 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.(Id.). A criminal judgment becomes final when the time for seeking direct appeal expires or when direct appeals have been exhausted. Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987).
Given that Defendant/Movant is challenging his underlying conviction, the date the judgment became final would correspond with Defendant/Movant's judgment of conviction and sentence on March 29, 2016, in the United States District Court for the Southern District of Texas. Adding 14-days for time for filing an appeal, Defendant/Movant's conviction became final in April 2016, over 4-years before the filing of the § 2255 Motion. The Plaintiff asserts that the judgment at issue became final on November 26, 2019, which is the date of the filing of the order reflecting revocation of Defendant/Movant's supervised release (Doc. 4 at 3). Even using the November 26, 2019, date and adding 14-days for time for filing appeal for AEDPA's start date, the § 2255 Motion was filed over 22-months after such time. In short, the § 2255 was untimely filed under 28 U.S.C. § 2255(f)(1). Further, the later start date of 28 U.S.C. § 2255(f)(3) does not apply because Defendant/Movant cites an August 2021, United States District Court 4 case from the District of Nevada, United States v. Carrillo-Lopez, No. 3:20-cr-00026-MMD-WGC, 2021 WL 3667330, 2021 U.S. Dist. LEXIS 155741 (D. Nev. Aug. 18, 2021), not a United States Supreme Court case. In short, the § 2255 Motion was untimely filed pursuant to 28 U.S.C. § 2255(f).
While Defendant/Movant clearly identifies criminal case CR-19-50107-PHX-SMB as the subject of the § 2255 Motion (Doc. 1 at 1), Defendant/Movant refers to a 30-month sentence (Id.). That was the sentence imposed on November 25, 2019, and reflected in the Judgment issued on November 26, 2019, in United States v. Andres Gonzalez-Hernandez, CR-19-00691-PHX-SMB (D. Ariz. 2019). See footnote 3, supra. If Defendant/Movant meant the § 2255 Motion to be directed to that case, the § 2255 Motion would be untimely for the same reasons stated above.
B. Equitable Tolling
In order for a movant to be entitled to equitable tolling of AEDPA's 1-year limitations period, he must show: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (citation omitted). Equitable tolling is appropriate only “if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (citations omitted) (tolling of statute of limitations due to extraordinary circumstances requires that a defendant diligently pursue his claim). A movant bears the burden of establishing that he pursued his rights diligently and that some extraordinary circumstances stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Grounds for equitable tolling are “highly fact-dependent.” Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (citing Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (en banc)).
After careful review of the record, the Court finds that Defendant/Movant has not made a showing that could trigger equitable tolling. Defendant/Movant has not established that he has been diligently pursuing his rights or that some extraordinary circumstance stood in his way of timely filing the § 2255 Motion.
C. Actual Innocence Exception
In McQuiggin v. Perkins, 569 U.S. 383 (2013), the United States Supreme Court recognized an exception to the AEDPA statute of limitations for a claim of actual 5 innocence. The Court adopted the actual innocence gateway previously recognized in Schlup v. Delo, 513 U.S. 298, 314-15 (1995), to excuse the bar to federal habeas corpus review of procedurally defaulted claims. McQuiggin, 569 U.S. at 386-87 (citing Schlup, 513 U.S. at 937-38). The rule announced in McQuiggin does not provide for an extension of the time statutorily prescribed, but instead is an equitable exception to AEDPA's statute of limitations. Id. at 392. Actual innocence, if proven, merely allows a federal court to address the merits of a movant's otherwise time-barred constitutional claims.
Defendant/Movant does not even argue he has a credible claim of actual innocence. Nor does the record reveal such. Accordingly, no such equitable exception to the statute of limitations applies.
D. Untimeliness
Given the above, the § 2255 Motion was untimely filed and should be dismissed.
IV. EVIDENTIARY HEARING
An evidentiary hearing is not warranted regarding the § 2255 Motion because the record is sufficiently developed to resolve the question of whether or not the § 2255 Motion was timely filed.
V. CERTIFICATE OF APPEALABILITY
A court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A § 2255 movant must show that “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). A certificate of appealability should be granted for any issue that the petitioner can demonstrate is debatable among jurists of reason, could be resolved differently by a different court, or is adequate to deserve encouragement to proceed further. Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). The court must resolve doubts about the propriety of a certificate of appealability in the petitioner's favor. Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000). 6
Defendant/Movant has not met the standard for a certificate of appealability. Dismissal of the § 2255 Motion is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
VI. CONCLUSION
Because the § 2255 motion is untimely and should be dismissed on that basis without a certificate of appealability, Plaintiffs waiver argument is not addressed herein.
Accordingly, IT IS THEREFORE RECOMMENDED that that Defendant/Movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”) (Doc. 1) be dismissed without an evidentiary hearing.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the § 2255 Motion is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72. 7