Opinion
CV-23-00502-PHX-GMS (DMF) CR-19-01396-PHX-GMS
01-04-2024
United States of America, Plaintiff/Respondent, v. Jose Francisco Rivera-Sarabia, Defendant/Movant.
HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge.
On February 20, 2023, Defendant/Movant Jose Francisco Rivera-Sarabia (“Movant”) filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (“§ 2255 Motion”) in this Court. (Doc. 1) Movant is an inmate in Bureau of Prisons custody and is serving a prison sentence imposed by this Court. (Id.; see also Doc. 6-1)
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); see also Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (affirming that the prison mailbox rule “applies to pro se federal habeas petitions” on the date a petitioner signs, dates, and attests the petition was placed in the prison mailing system). The § 2255 Motion was accompanied by Movant's signed declaration that he placed the § 2255 Motion in the prison mailing system on February 20, 2023. (Doc. 1 at 2) The record also indicates that the § 2255 Motion was sent postage paid. (Doc. 1 at 3)
Citations to the record indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona under Case Numbers CV-23-00502-PHX-GMS (DMF), CR-19-01396-PHX-GMS, and CR-13-01114-PHX-GMS.
On March 29, 2023, the Court granted Movant 30 days to file either a notice of withdrawal of the § 2255 Motion or an amended § 2255 motion. (Doc. 3) On May 16, 2023, the Clerk of Court entered judgment of dismissal after Movant failed to timely file either a notice of withdrawal or an amended § 2255 motion. (Doc. 4) On June 13, 2023, a copy of the March 29, 2023, Order mailed to Movant was returned as undeliverable. (Doc. 5) On July 19, 2023, Movant filed an Amended § 2255 Motion. (Doc. 6) On August 11, 2023, the Court vacated entry of judgment and reopened this case. (Doc. 7) The Court ordered that the United States Attorney for the District of Arizona or his designee answer to the Amended § 2255 Motion. (Id. at 3) The Court also ordered that “Movant must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure” and that “[f]ailure to comply may result in dismissal of this action.” (Id. at 2; see also Id. at 3, lines 8-11)
After Respondent failed to file a timely answer to the Amended § 2255 Motion, the Court issued an Order directing the filing of an answer within fourteen days. (Doc. 8) Respondent filed an answer within that timeframe, satisfying the Court's Order. (Doc. 9)
None of the Court's Orders after Movant's filing of the Amended § 2255 Motion were returned as undeliverable. Nor has Respondent filed any notice that Respondent's answer was returned as undeliverable. Movant has not filed a reply, and the time to do so has expired. Thus, this matter is ripe.
As explained below, these proceedings were untimely filed. Therefore, it is recommended that Movant's Amended § 2255 Motion be dismissed with prejudice and this matter be terminated.
Citations to documents within Movant's 2019 criminal case are denoted “2019 CR Doc.” Citations to documents within Movant's 2013 criminal case, case number CR-13-01114-PHX-GMS, are denoted “2013 CR Doc.” Citations to documents in Movant's instant § 2255 matter, case number CV-23-00502-PHX-GMS (DMF), are denoted “Doc.”
I. BACKGROUND
On October 18, 2019, Movant was charged by complaint with one count of Attempted Reentry of Removed Alien in violation of 8 U.S.C. § 1326(a) and (b)(1). (2019 CR Doc. 1) When arrested for that offense, Movant was on supervised release in criminal case number CR-13-01114-PHX-GMS. (2013 CR Docs. 18, 19) A petition to revoke Movant's supervised release was filed. (2013 CR Doc. 19) On December 10, 2019, in follow up to the October 2019 complaint, Movant was indicted and charged with one count of Attempted Reentry of Removed Alien in violation of 8 U.S.C. § 1326(a) and (b)(1). (2019 CR Doc. 16)
On November 4, 2013, Movant was convicted, pursuant to a plea agreement, of illegal reentry of a removed alien, in violation of 8 U.S.C. § 1326(a) and with a sentencing enhancement under 8 U.S.C. § 1326(b). (2013 CR Doc. 18) Movant was sentenced to 50 months imprisonment followed by three years on supervised release. (Id.)
Pursuant to a plea agreement, Movant pleaded guilty to count 1 of the indictment and admitted the supervised release violation in allegation 1 of the petition to revoke. (2019 CR Docs. 43, 44, 49; 2013 CR Doc. 51) Undersigned conducted the change of plea and admit/deny hearings and found that Movant's guilty plea and admission were knowingly, voluntarily, and intelligently made. (2019 CR Docs. 42, 43; 2013 CR Docs. 50, 51)
On December 7, 2020, Movant to was sentenced to 54 months imprisonment with supervised release to follow for attempted illegal reentry with sentencing enhancement under 8 U.S.C. § 1326(a) and (b)(1). (2019 CR Docs. 48, 50) The same day, Movant's supervised release was revoked and he was sentenced to 14 months imprisonment. (2013 CR Docs. 53, 54)
Movant did not file a direct appeal in either criminal case number CR-19-01396-PHX-GMS or criminal case number CR-13-01114-PHX-GMS.
In CR-13-01114- PHX-GMS, Movant had not filed a direct appeal of the conviction and sentence and did not file a direct appeal of the supervised release revocation and corresponding sentence.
II. MOVANT'S HABEAS CLAIM
It appears that Movant's § 2255 Motion did not reflect any criminal case number before its filing. (Doc. 1) The Amended § 2255 Motion lists criminal case number CR-19-01396-PHX-GMS, but does not list criminal case number CR-13-01114-PHX-GMS. (Doc. 6) Movant's § 2255 Motion and Amended § 2255 Motion were filed only in criminal case number CR-19-01396-PHX-GMS and in these habeas proceedings. See Rule 2(d), Rules Governing Section 2255 Proceedings (“A moving party who seeks relief from more than one judgment must file a separate motion covering each judgment.”).
In his Amended § 2255 Motion (Doc. 6), Movant alleges that his counsel rendered ineffective assistance by allowing him to plead to the indictment “without the knowledge that [he] may have won on trial.” (Id. at 5) He alleges that counsel knew of “pending Supreme Court cases” that could have helped him at the trial stages of the indictment, although Movant does not identify any Supreme Court cases. (Id.) In the same claim, Movant also alleges that Movant entered a guilty plea in return for a sentence of 24-30 months, but the Court sentenced him to 54 months for illegal reentry in addition to 14 months for his supervised release violation. (Id.) Movant does not acknowledge, give reason, or request excuse for the untimeliness of these proceedings. (Id. at 9)
Respondent requests that the Amended § 2255 Motion, and these proceedings, be dismissed as untimely. (Doc. 9 at 5) Respondent also argues that Movant's claim in his Amended § 2255 Motion fails on the merits for various reasons, including that Movant cannot demonstrate prejudice, which undermines his ineffective assistance of counsel claim. (Id. at 5-6) Respondent also argues that:
Movant provides nothing of substance to support his claim that he could have prevailed at trial, nor does he identify what pending Supreme Court cases would support his innocence. Movant therefore cannot show that his guilty plea was unknowing or involuntary, that he would not have accepted the plea agreement but for any unspecified errors made by his attorney, or that the Court would have imposed a different sentence.(Id. at 7) Respondent attached the transcript of the September 9, 2020, change of plea and admit/deny hearings in criminal case number CR-19-01396-PHX-GMS and criminal case number CR-13-01114-PHX-GMS. (Doc. 9-1) Respondent also attached the transcript of the December 7, 2020, sentencing and disposition hearings in criminal case number CR-19-01396-PHX-GMS and criminal case number CR-13-01114-PHX-GMS. (Doc. 9-2)
Movant did not file a reply in support of his Amended § 2255 Motion, and the time to do so expired over a month ago. Movant has made no filings in this matter since the filing of his Amended § 2255 Motion. None of the Court's Orders after Movant's filing of the Amended § 2255 Motion were returned as undeliverable. Nor has Respondent filed any notice that Respondent's answer was returned as undeliverable. Thus, this matter is ripe.
III. THESE PROCEEDINGS WERE UNTIMELY FILED
Respondent urges that the Amended § 2255 Motion should be dismissed because these proceedings were filed after the expiration of the applicable one-year statute of limitations. (Doc. 9 at 5)
Whether the Amended § 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 Movant's § 2255 proceedings because Movant's § 2255 Motion 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)). The Court will use the date of filing the original § 2255 Motion, not the Amended § 2255 Motion, as the filing date of the Amended § 2255 Motion for purposes of timeliness analysis. See Mayle v. Felix, 545 U.S. 644, 650 (2005). Whether or not the Amended § 2255 Motion relates back to the filing of the § 2255 Motion does not matter because both the § 2255 Motion and Amended § 2255 Motion were untimely filed without excuse on the record before the Court. Further, even if the § 2255 Motion and Amended § 2255 Motion were construed to also apply to criminal case number CR-13-01114-PHX-GMS in addition to criminal case number CR-19-01396-PHX-GMS, these proceedings were untimely filed without excuse on the record before the Court.
A. Statute of limitations
AEDPA establishes a one-year limitations period for federal prisoners to file a motion collaterally attacking their convictions and sentences. The one-year limitations period runs from the latest of, as is pertinent here, “the date on which the judgment of conviction becomes final[.]” 28 U.S.C. § 2255(f)(1). Although § 2255 does not define the term “final,” the Supreme Court has applied its ordinary standard of finality. The Supreme Court has held that a conviction is final in the context of habeas review when “a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). Relying on that definition of finality, the Ninth Circuit has “adopted, for § 2255 purposes, the definition of finality set forth in 28 U.S.C. § 2244(d)(1) which is applicable to state prisoners seeking federal habeas relief.” United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (citing United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir. 2000)). Thus, when a defendant does not appeal, the conviction becomes final upon the expiration of time for doing so, or fourteen days after judgment is entered. See Schwartz, 274 F.3d at 1224 n.1; Garcia, 210 F.3d at 1060-61; see also Fed. R. App. P. 4(b)(1)(A) (providing that a notice of appeal must be filed within fourteen days after “the entry of either the judgment or the order being appealed”).
Movant was sentenced on December 7, 2020, in criminal case number CR-19-01396-PHX-GMS and in criminal case number CR-13-01114-PHX-GMS. Movant had fourteen days in which to file an appeal, which was until Monday, December 21, 2020. Movant did not do so, and the applicable judgment became final on that day. AEDPA's one-year limitations period began to run the following day, on December 22, 2020, and Movant's one-year deadline for filing his § 2255 Motion expired on Tuesday, December 21, 2021. See Patterson, 251 F.3d at 1247. Movant initiated these proceedings by filing his § 2255 Motion on February 20, 2023 (Doc. 1), rendering these proceedings untimely filed by more than a year. The Court, therefore, need not reach the merits of Movant's claim unless Movant establishes equitable tolling to render these proceedings timely filed or Movant establishes his actual innocence.
Respondent correctly identifies the one-year statute of limitations period, but misapplies such in stating that “[a[ny § 2255 motion challenging the conviction in CR-19-01396-PHX-GMS therefore had to be filed on or before December 21, 2020.” (Doc. 9 at 5) Nevertheless, these proceedings were untimely filed with correct application of the one-year statute of limitations period.
B. Equitable tolling
The statute of limitations may be equitably tolled in a 28 U.S.C. § 2255 action if “(1) the [movant] has diligently pursued his rights, and (2) extraordinary circumstances exist.” United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “Still, ‘the threshold necessary to trigger equitable tolling ... is very high.'” Id. (quoting Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006)). Further, the movant bears the burden of establishing equitable tolling's requirements. Pace, 544 U.S. at 418.
Here, Movant has not alleged or proven that he has been diligently pursuing his rights or that extraordinary circumstances prevented him from filing a timely § 2255 motion. Nor is there any indication in the record supporting such conclusions. Thus, equitable tolling does not render these proceedings timely filed.
C. Movant does not argue and the record does not support an 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 innocence. In McQuiggin, the Supreme 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 claims. Id.
Movant does not argue that he has a credible claim of actual innocence, nor is there indication in the record of such. Movant pleaded guilty and admitted the violation of his supervised release. Movant's vague reference to unidentified Supreme Court cases which might have helped Movant at the trial stage of his 2019 criminal case is insufficient for invoking the actual innocence exception. Under Schlup, a movant must establish factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003).
On this record, the actual innocence equitable exception to the statute of limitations does not apply to render these proceedings timely filed.
D. Evidentiary hearing
An evidentiary hearing is not warranted regarding Movant's claim because the record is sufficiently developed to resolve the question of whether these proceedings were timely filed. Further, Movant has not asserted any excuse for his untimely filing, has not asserted any basis for equitable tolling, and has not established his actual innocence to render these proceedings timely filed.
IV. CONCLUSION
For the reasons set forth above, these proceedings were untimely filed, and it is recommended that the Amended § 2255 Motion (Doc. 6) be dismissed with prejudice without an evidentiary hearing. Because of the untimeliness of these proceedings, Respondent's other arguments are not addressed herein. Assuming the recommendations herein are followed in the district court's judgment, the decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling. Thus, it is further recommended that a certificate of appealability be denied.
Accordingly, IT IS HEREBY RECOMMENDED that Movant's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. 6) and these proceedings be dismissed with prejudice and the Clerk of Court be directed to terminate this matter.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal 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), 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections.
Failure timely to file 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 timely to file objections to any factual determinations of the Magistrate Judge will 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 Rule 72, Federal Rules of Civil Procedure.