Opinion
NO. 3-97-CR-0409-P(07), NO. 3-01-CV-0542-P
May 7, 2001
MEMORANDUM OPINION AND ORDER
Movant Jose Lopez-Vences has filed a motion to correct, vacate or set aside his sentence. Movant is an inmate in the federal prison system. Respondent is the United States of America.
Movant was convicted of two counts of use of a communication facility in the distribution of cocaine in violation of 21 U.S.C. § 843(b). Punishment was assessed at 48 months confinement per count, to run consecutive, followed by supervised release for a period of one year. Movant did not appeal. Instead, he filed this motion under 28 U.S.C. § 2255.
ISSUES PRESENTED
Movant attacks his conviction and sentence in three grounds for relief. He contends that: (1) he was denied his right to appeal; (2) the imposition of two consecutive, rather than concurrent, terms of imprisonment violated his oral plea agreement; and (3) he received ineffective assistance of counsel.
The Court sua sponte noted that this case may be subject to dismissal on limitations grounds. Movant was given an opportunity to address this issue in a written reply. He filed his response on May 2, 2001. The Court now concludes that this case is barred by limitations and should be summarily dismissed.
APPLICABLE LAW
The Antiterrorism and Effective Death Penalty Act of 1996 establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). In most cases, the limitations period begins to run when the judgment becomes final. 28 U.S.C. § 2255. However, the statute is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998).
The statute provides that the limitations period shall run from the latest of —
(A) the date on which the judgment of conviction becomes final;
(B) 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 filing by such governmental action;
(C the date on which the right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) 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. § 2255.
DISCUSSION
Movant was sentenced to 96 months in prison for use of a communication facility in the distribution of cocaine. The judgment of conviction was entered on December 28, 1998. Movant did not appeal. Therefore, his conviction became final ten days thereafter on January 7, 1999. See FED. R. APP. P. 4(b). The instant motion was not filed until February 8, 2001-more than two years after movant's sentence became final.
The motion for post-conviction relief is dated February 8, 2001, but was not file-stamped until February 13, 2001. The Court will consider the motion filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) ( pro se habeas petition deemed filed when delivered to prison authorities for mailing).
Movant asserts that he has a limited vocabulary, limited knowledge of the law and access to legal assistance plus frequent transfers within the Bureau of Prisons. (Motion for Leave of Court Allowing Petitioner to File an Out-of-Time Under 28 U.S.C. § 2255). However, unfamiliarity with the legal process does not excuse the failure to comply with a statute of limitations. Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 120 S.Ct. 504 (1999); see also Felder v. Johnson, 204 F.3d 168, 170 (5th Cir. 2000), pet. for cert. filed, (proceeding pro se not sufficient to toll limitations). Nor does unfamiliarity with English. Turner, 177 F.3d at 392 (illiteracy insufficient to toll limitations); see also United States v. Cordova, 202 F.3d 283, 1999 WL 1136759 *1 (10th Cir. 1999) (table) (lack of fluency in English not extraordinary circumstance sufficient to toll limitations). Although movant states that he was transferred to different prisons four times in the last two years he provides no explanation as to how this affected his ability to seek post-conviction relief. The Court therefore concludes that this motion should be dismissed.
CONCLUSION
It plainly appears from the face of the motion and prior proceedings that this case is barred by limitations. Accordingly, the motion to correct, vacate, or set aside sentence is summarily dismissed. See RULES GOVERNING SECTION 2255 CASES, Rule 4.