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Garcia v. United States

United States District Court, W.D. North Carolina, Statesville Division

June 20, 2018

ANTONIO TORRES GARCIA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), that he has filed through counsel. The Court ordered Petitioner to file a response demonstrating why the § 2255 Motion to Vacate is timely and cautioned him that failure to do so would probably result in dismissal with prejudice. (Doc. No. 2). Petitioner filed a Response addressing limitations. (Doc. No. 3).

         I. BACKGROUND

         A jury found Petitioner guilty in the underlying criminal case to conspiracy to possess with intent to distribute a Schedule II controlled substance. (5:03-cr-20, Doc. No. 290). He failed to appear for his trial, which was separately charged in case number 5:08-cr-07, and to which he pled guilty. On April 14, 2015, the Court entered its judgment sentencing Petitioner to 330 months' imprisonment for the drug offense and 30 months' imprisonment for failure to appear, running consecutively. (5:03-cr-20, Doc. No. 351). Defense counsel stated at the sentencing hearing that he would be filing a notice of appeal on Petitioner's behalf. (5:03-cr-20, Doc. No. 381 at 72). However, no appeal was filed.

         Petitioner filed the instant § 2255 Motion to Vacate through counsel on April 23, 2018. He argues that he should be granted a belated appeal because counsel told him he would file an appeal on his behalf but failed to do so. Petitioner alleges that he sent several letters after sentencing, to which he received no response, and he never saw counsel again after sentencing. Petitioner admits that the instant § 2255 Motion to Vacate was filed outside of the applicable one-year statute of limitations. However, he argues that the Court is not barred from granting relief because the reentry of a judgment is a judicial, rather than a statutory, remedy. In his Response addressing limitations, Petitioner reiterates his arguments and asserts that the Court should not address limitations without first ordering the Government to respond, which would provide it with the opportunity to waive the statute of limitations defense.

         II.STANDARD OF REVIEW

         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

         A one-year statute of limitation applies to motions to vacate under § 2255, which 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 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.

28 U.S.C. § 2255(f).

         An otherwise time-barred petitioner is entitled to equitable tolling in “those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation against the party.” Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) (citing Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)); United States v. Prescott, 221 F.3d 686, 688 (4th Cir. 2000)(“§ 2255's limitation period is subject to equitable modifications such as tolling.”). In order for equitable tolling to apply, petitioner must demonstrate that (1) he has been pursuing his rights diligently, and (2) ...


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