United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge.
MATTER is before the Court on an initial review of
Luis Enrique Garcia's pro se Motion to Vacate, Set Aside
or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc.
pled guilty, pursuant to a plea deal, in federal district
court to one count of conspiracy to distribute and possess
with intent to distribute methamphetamine, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A). Acceptance and
Entry of Guilty Plea, Doc. No. 31. The Court imposed a
mandatory minimum sentence of 188 months. Stmnt. of Reasons,
Doc. No. 43. Judgment was entered on December 18, 2013. J.,
Doc. No. 42.
Petitioner's assertions to the contrary, he timely filed
a pro se notice of appeal, Doc. No. 44,  and on September
30, 2014, the Fourth Circuit Court of Appeals issued an
opinion dismissing the appeal, in part, and affirming
judgment, in part. United States v. Garcia, 583 F.
App'x 265 (4th Cir. 2014) (unpublished). On August 24,
2015, Petitioner, through counsel, filed a motion in this
Court for a sentence reduction pursuant to Amendment 782 of
the United States Sentencing Guidelines
(“U.S.S.G.”). Doc. No. 59. On December 28, 2015, the
Court entered an Order reducing Petitioner's sentence
under Amendment 782 to 151 months' imprisonment. Doc. No.
filed the instant Motion to Vacate on April 22, 2017, when he
placed in the prison mail system. Petitioner's grounds
for relief are difficult to follow but all allege
deficiencies on the part of trial counsel for failing to
follow through on promises to obtain a reduced sentence.
(Mot. to Vacate 4-6, 8, 13-14, Doc. No. 1.) Additionally,
Petitioner claims that his plea was not knowing, intelligent,
or voluntary because he did not understand what he was
agreeing to. (Mot. to Vacate 8.)
STANDARD OF REVIEW
Court is guided by Rule 4(b) of the Rules Governing Section
2255 Proceedings for the United States District Court, which
directs district courts to dismiss habeas motions when it
plainly appears from the motion and any attached exhibits
that the petitioner is not entitled to relief. Rule 4(b), 28
U.S.C.A. foll. § 2255. In conducting its review under
Rule 4, the district court “has the power to raise
affirmative defenses sua sponte, ” including a statute
of limitations defense under 28 U.S.C. § 2255(f).
Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002).
The court may dismiss a petition as untimely under Rule 4,
however, only if it is clear that the petition is untimely,
and the petitioner had notice of the statute of limitations
and addressed the issue. Id. at 706-707.
federal district court must dismiss any § 2255 motion
that is filed more than one year after the date on which: (1)
the judgment of conviction becomes final; (2) the impediment
to making a motion, created by unlawful governmental action,
is removed and the petitioner was prevented from making a
motion by such action; (3) the United States Supreme Court
initially recognized the constitutional right asserted, if
the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review;
or (4) the facts supporting the claims presented could have
been discovered with due diligence. 28 U.S.C. §
2255(f)(1)-(4). A petitioner must demonstrate that the
petition was timely filed under § 2255 or that his
untimely petition may be salvaged by equitable tolling
principles. See Holland v. Florida, 130 S.Ct. 2549,
2562 (2010) (confirming that equitable tolling applied to
federal habeas statute of limitations).
Court entered judgment in this case on December 18, 2013. J.,
Doc. No. 42. Petitioner's judgment became final for
purposes of § 2255(f)(1) on or about December 29, 2014,
90 days after the Fourth Circuit denied Petitioner's
direct appeal, and the time for Petitioner to file a petition
for writ of certiorari in the United States Supreme Court
expired. Clay v. U.S., 537 U.S. 522, 527 (2003);
Sup. Ct. R. 13.1 (setting 90-day time limit for filing a
petition for writ of certiorari). The statute of limitations
then ran for 365 days until it fully expired on or about
December 29, 2015.
Petitioner had until December 29, 2015, to file a timely
§ 2255 motion. See § 2255(f)(1). As he did
not file the instant Motion until April 22, 2017, it is
untimely. See id.
asserts that he did not file his § 2255 Motion within
the statute of limitations because his attorney was supposed
to file some motions in the federal district court to get
Petitioner's sentence reduced but failed to follow
through. (Mot. to Vacate 16.) To qualify for equitable
tolling of the statute of limitations a petitioner must
demonstrate “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.”
Holland, 560 U.S. at 649 (internal quotation marks
omitted). Under Fourth Circuit precedent, equitable tolling
is appropriate in those “rare instances where-due to
circumstances external to the party's own conduct-it
would be unconscionable to enforce the limitation period
against the party and gross injustice would result.”
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en
banc) (quoting Harris v. Hutchinson, 209 F.3d 325,
330 (4th Cir. 2000)) (internal quotation marks omitted).
explanation demonstrates neither diligence in pursuing his
rights nor that some extraordinary circumstance stood in his
way and prevented timely filing of a federal habeas petition.
According to Petitioner, counsel made promises regarding
Petitioner's sentence either prior to his entering a
guilty plea or when sentencing was concluded. Other than
filing a direct appeal, Petitioner evidently has done nothing
more than wait for his attorney to do what he allegedly
promised. While it may be reasonable for a prisoner to wait
for some short ...