Opinion
EP-05-CA-0339-PRM, EP-02-CR-2001-PRM.
December 6, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Jesus Heriberto Vega-Arvizu's ("Vega") 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 7, 2005. After review, the Court finds that Vega's claims are time-barred and that he is not entitled to equitable tolling. Alternatively, his claims are without merit. Accordingly, the Court concludes that his Motion to Vacate should be denied and this matter dismissed with prejudice. The Court will additionally decline to certify his issues for appeal.
I. BACKGROUND PROCEDURAL HISTORY A. Criminal Cause No. EP-02-CR-2001-PRM
On December 18, 2002, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Vega, charging him with Illegal Reentry, in violation of 8 U.S.C. § 1326. The Government duly filed a Notice of Intent to Seek Increased Statutory Penalty, pursuant to 8 U.S.C. § 1326(b)(2), due to Vega's prior aggravated felony conviction.
Vega decided to forego trial. By consent and accompanied by his Court-appointed counsel, Assistant Federal Public Defender Michael David Pariente ("Pariente"), Vega accordingly appeared before a United States Magistrate Judge on January 31, 2003 and entered a plea of guilty to the Indictment. The Magistrate Judge entered finding of facts that same day, recommending that the Court accept Vega's plea. The Court adopted the Magistrate Judge's recommendation on February 18, 2003 and subsequently set the matter for sentencing. It entered Judgment on March 31, 2003, sentencing Vega to a 80-month term of imprisonment and a 3-year term of non-reporting supervised release. The Court additionally ordered Vega to pay a $100 special assessment.
Vega timely appealed, arguing that the prior conviction used to increase his sentence is an element of a separate offense under 8 U.S.C. § 1326 and should have been alleged in the Indictment. Because it was not included in the Indictment, Vega argued, his sentence therefore exceeded the 2-year maximum term of imprisonment that may be imposed for that offense. He acknowledged that the Supreme Court's holding in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), foreclosed his argument, but asserted that the Supreme Court's later holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), had cast doubt on the continuing viability of Almendarez-Torres. He therefore sought to preserve his claim for review. The Fifth Circuit Court of Appeals rejected his argument and affirmed the judgment on August 20, 2003, stating that Apprendi had not overruled Almendarez-Torres, which held that: (1) the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, rather than elements of a separate offense, and therefore need not be alleged in the indictment; and (2) the sentencing provisions of § 1326(b) do not violate due process. It further stated that, unless and until the Supreme Court itself chose to overrule its holding, the Court of Appeals was obliged to abide by Almendarez-Torres. The Supreme Court of the United States denied Vega's petition for a writ of certiorari on January 12, 2004.
B. Vega's Motion to Vacate
The Court has read Vega's Motion to Vacate liberally, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). The Court understands him to raise the following two claims. First, Vega argues that Pariente was ineffective at sentencing because he did not argue that Vega should receive a more lenient sentence because as an alien, he would be ineligible for halfway-house placement and a one-year reduction in his sentence if he successfully completed a residential drug abuse treatment program (Ground One). Second, Vega contends that the Court sentenced him in a manner that violates the holding of United States v. Booker, 543 U.S. 220 (2005).
II. LEGAL STANDARD
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. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (same).
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.
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. APPLICABILITY OF THE ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
U.S.C.S. § 2255 Proc. R. 4(b) (2004).
Because Vega filed his Motion to Vacate after April 24, 1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the AEDPA's provisions apply to Vega's claims. In the AEDPA, Congress established a specific, one-year limitation period for filing a motion to vacate sentence pursuant to § 2255, 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.
See Lindh v. Murphy, 521 U.S. 320, 336-37 (holding that the AEDPA's provisions apply to cases filed after the legislation's effective date of April 24, 1994); United States v. Orozco-Ramirez, 211 F.3d 862, 865-66 (5th Cir. 2000) (stating that the AEDPA's provisions apply to habeas corpus applications and motions to vacate pending upon or filed after the legislation's effective date of April 24, 1996).
28 U.S.C.A. § 2255 ¶ 6 (West Supp. 2004).
The AEDPA thus describes four different events which could trigger the limitations period. Because Booker does not apply retroactively to convictions on collateral review, Vega may not rely on § 2255 paragraph 6(3) to define the date on which the statute of limitations began to run. Rather, the relevant time, for purposes of both of Vega's claim, is the date on which his Judgment became final.
See United States v. Gentry, No. 04-11221, 2005 U.S. App. LEXIS 26883, *14 (5th Cir. Dec. 8, 2005) (holding that the new procedural rule announced in Booker does not apply retroactively to initial § 2255 motions); see also Lloyd v. United States, 407 F.3d 608, 614 (3rd Cir. 2005) (joining its sister circuit courts of appeals in holding that Booker does not apply retroactively to initial motions under 28 U.S.C. § 2255 where the judgment was final as of January 12, 2005); Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005) (holding that Booker is not retroactive and does not apply to judgments that were final before January 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (concluding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005.").
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).
Here, Judgment became final on January 12, 2004, the date on which the Supreme Court of the United States denied Vega's petition for a writ of certiorari. Vega therefore had until January 12, 2005 to file a Motion to Vacate pursuant to 28 U.S.C. § 2255. Vega, however, could not have filed his Motion to Vacate any earlier than August 30, 2005, the date on which he signed it. His Motion to Vacate is thus untimely by approximately seven months.
See Clay v. United States, 537 U.S. 522, 527 (2003) (stating that, in the context of post-conviction actions such as a motion pursuant to 28 U.S.C. § 2255, finality attaches when the Supreme Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or the time for filing a certiorari petition expires).
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. It 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.
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.
Salinas v. Dretke, 354 F.3d 425, 429 (5th Cir. 2004), cert. denied, 541 U.S. 1032 (2004).
Cousin, 310 F.3d at 848.
"Whether [a criminal defendant] had effective assistance on direct appeal in state court is not relevant to the question of tolling the AEDPA's statute of limitations. A criminal defendant has a right to effective assistance of counsel on a first appeal as of right. An alleged violation of that right does not toll the AEDPA's statute of limitations." "[M]ere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified."
Molo, 207 F.3d at 775.
Cousin, 310 F.3d at 849.
Moreover, a petitioner's "claims of innocence do not preclude the dismissal of his petition as untimely." "A petitioner's claims of actual innocence are relevant to the timeliness of his petition if they justify equitable tolling of the limitations period. We have previously held that they do not." Similarly, a petitioner's ignorance or mistake is insufficient to warrant equitable tolling. B. Discussion
Id.
Id.
Id.
Inasmuch as Vega contends that he could not previously raise his claim that Pariente was ineffective at sentencing because of the ineffectiveness of his appellate counsel, his assertion is conclusory and insufficient to sustain his burden for obtaining equitable relief. The Court also notes that Vega's claim as to Pariente is without merit and would therefore still be subject to summary dismissal should the Court find that Vega were entitled to equitable relief from the limitations period. Collateral consequences that an alien may incur following his federal conviction for Illegal Re-entry, such as his ineligibility for more lenient conditions of confinement, are not a basis for a downward departure. Pariente cannot be said to have performed deficiently for declining to make a frivolous argument.
United States v. Garay, 235 F.3d 230, 234 (5th Cir. 2000) (holding that a defendant's status as a deportable alien, as an element of the crime for which he was sentenced, is not the kind of aggravating or mitigating circumstance of the kind or degree not adequately taken into consideration by the Sentencing Guidelines).
See Strickland v. Washington, 466 U.S. 668, 687 (1984) (explaining that an ineffective assistance of counsel claim has two components: (1) deficient performance; and (2) prejudice); Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be held deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
Insofar as Vega asserts that he could not previously file his Booker because that case was not decided until January 12, 2005, the Court finds his argument unavailing. Because Vega's conviction became final exactly one year before the Supreme Court released Booker, he may not claim relief under its holding. Therefore, even if the Court were to find that it should equitably toll the statute because the basis for the claim was not available until after the one year limitations period expired, Vega's claim would still be subject to summary dismissal. Any relief that Booker might otherwise provide would not apply retroactively to his already final judgment.
See Gentry, No. 04-11221, 2005 U.S. App. LEXIS 26883, at *14 (holding that the new procedural rule announced in Booker does not apply retroactively to initial § 2255 motions); Lloyd, 407 F.3d at 614 (joining its sister circuit courts of appeals in holding that Booker does not apply retroactively to initial motions under 28 U.S.C. § 2255 where the judgment was final as of January 12, 2005); Guzman, 404 F.3d at 144 (holding that Booker is not retroactive and does not apply to judgments that were final before January 12, 2005); Price, 400 F.3d at 845 (concluding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress, 398 F.3d at 856 (holding that Booker does not apply retroactively to cases already final on direct review); Varela, 400 F.3d at 868 (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds, 397 F.3d at 481 ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005.").
The Court also observes that Booker would not, in fact, afford Vega any relief from his sentence. Vega's punishment range was enhanced on the basis of his prior convictions. Booker extended the rule of Apprendi, which carves out a specific exception for prior convictions. See Booker, ___ U.S. at ___, 125 S. Ct. at 748 (" Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.").
Lastly, as to both claims, the Court finds that Vega has not demonstrated that he relied to his detriment on any affirmative, but incorrect representation by the Court, or that any party obstructed his attempts to obtain habeas relief. The Court therefore concludes that Vega has not shown, as it is his burden to do, that he is entitled to equitable tolling of the AEDPA's limitations period. The Court will accordingly dismiss his claims 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 certificate of probable cause 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 certificate of probable cause 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) (holding the same); 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 Vega'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 Vega's claims for relief.
VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Jesus Heriberto Vega-Arvizu's Motion to Vacate, Set Aside, or Correct Sentence filed 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 Jesus Heriberto Vega-Arvizu's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on September 7, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Jesus Heriberto Vega-Arvizu is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order denying Petitioner Jesus Heriberto Vega-Arvizu's 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 7, 2005. The Court further denied Petitioner a Certificate of Appealability regarding his claim. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. Accordingly,IT IS ORDERED that Petitioner Jesus Heriberto Vega-Arvizu's "Motion Under 28 U.S.C. 2255 to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody" is DENIED and this action is DISMISSED WITH PREJUDICE. IT IS ALSO ORDERED that Petitioner Jesus Heriberto Vega-Arvizu is DENIED a CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that all other pending motions in this cause, if any, are DENIED AS MOOT.