Gomez-Lopez v. USA

Filing 4

ORDER - (1) The government has 30 days from the date of this Order within which to respond to this Order on the limited issue of whether Movant's § 2255 Motion is timely, subject to equitable tolling, or should be dismissed as untimely. (2) Movant may file a reply within 30 days from the date of service of the governments response to this Order. (See document for full details). Signed by Senior Judge Frederick J Martone on 6/10/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,

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Plaintiff,

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vs.

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No. CV 14-0435-PHX-FJM (JFM)
CR 12-0596-PHX-FJM

Elder Gomez-Lopez,

ORDER

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Defendant/Movant.

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Movant Elder Gomez-Lopez, who is confined in the Eloy Detention Center, a

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Corrections Corporation of America facility in Eloy, Arizona, has filed a pro se “Motion

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to Withdraw Guilty Plea, to Vacate Judgment of Conviction and Sentence, and for

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Dismissal of the Information with Prejudice Pursuant to 28 U.S.C. § 2255.” The Court

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will call for a limited response to the § 2255 Motion addressing whether this Motion is

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timely.

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I.

Procedural History

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Movant pled guilty to re-entry of a removed alien, in violation of 8 U.S.C. §

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1326(a), with a sentencing enhancement pursuant to 8 U.S.C. § 1326(b)(1). On June 25,

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2012, the Court sentenced Movant to a seven-month term of imprisonment followed by

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three years of supervised release.

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II.

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Section 2255 Motion
In the § 2255 Motion, Movant asks that his judgment and conviction be vacated

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“due to a prima facie case of ineffective assistance of counsel in connection with the

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invalid guilty plea and invalid plea agreement and waivers, seriously affecting [his]

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substantial rights and liberty guarantees and self-executing statutory immunities as an

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alien refugee member of a protected class[.]” Movant asserts that his sentence expired on

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September 11, 2012, but that he is currently in custody within the meaning of § 2255

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because he is serving his term of supervised release and undergoing removal and

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withholding proceedings.

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Movant claims that his attorney was ineffective because Movant wanted to present

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his claim of fear of returning to Guatemala as a bar to the criminal charges. However, his

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attorney “repeatedly impressed upon [him] that he could not make his claim of fear in the

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criminal proceedings on the charge of illegal re-entry, and repeatedly falsely assured

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[him] that [he] could make his claim of fear only in immigration removal proceedings

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after pleading guilty to the charge of ‘illegal re-entry’ and completion of the criminal

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sentence.”

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removal based on past persecution and a well-founded fear of torture and death, he is

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factually innocent of the criminal charges brought against him.

Thus, Movant argues, as a refugee seeking asylum and withholding of

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Movant raises the issue of timeliness, arguing that that his Motion is timely under

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§ 2255(f)(4)’s tolling provisions because he did not learn the facts supporting his claim of

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ineffective assistance of counsel until December 2013 when he sought legal assistance to

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help him with his pending Petition for Review in the court of appeals.

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III.

Potential Dismissal

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The Anti-Terrorism and Effective Death Penalty Act (AEDPA) provides a one-

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year statute of limitations for a federal prisoner to file a motion to vacate, set aside, or

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correct his sentence, pursuant to 28 U.S.C. § 2255.1 The one-year limitations period

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generally begins to run on “the date on which the judgment of conviction becomes final.”

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The one-year statute of limitations for § 2255 motions under the AEDPA is the
same as the one-year statute of limitations for writs of habeas corpus by persons in state
custody under § 2244. See United States v. Jones, 963 F. Supp. 32, 34 (D.D.C. 1997).
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28 U.S.C. § 2255(f)(1). Absent equitable tolling, Movant’s § 2255 Motion appears to be

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time barred and subject to dismissal.

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Movant contends, however, that he is entitled to tolling of the statute of limitations

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under 28 U.S.C. § 2255(f)(4), which tolls the running of the limitations period until “the

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date on which the facts supporting the claim or claims presented could have been

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discovered through the exercise of due diligence.” He contends that it was not until

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December 2013 that he discovered that his defense counsel’s recommendation to plead

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guilty and withhold his asylum claim was wrong.

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“Generally, a litigant seeking equitable tolling bears the burden of establishing two

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elements: (1) that he has been pursuing his rights diligently, and (2) that some

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extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418

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(2005). He must also show a “causal link” between the extraordinary circumstances and

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the untimeliness of the § 2255 motion. United States v. Buckles, 647 F.3d 883, 890 (9th

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Cir. 2011).

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In his Motion, Movant has presented his position as to why his § 2255 Motion

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should not be dismissed as untimely. Therefore, the Court will require a response from

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the government limited to the issue of whether Movant’s Motion is timely under § 2255

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or whether he is entitled to equitable tolling. The government’s response must be

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limited to this issue and must be filed within 30 days of the date this Order is filed.

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Movant will then be permitted 30 days to file a reply.

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If Movant fails to establish that either his § 2255 motion is timely or that he is

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entitled to equitable tolling, his § 2255 Motion will be denied as untimely.

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IT IS ORDERED:

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(1)

The government has 30 days from the date of this Order within which to

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respond to this Order on the limited issue of whether Movant’s § 2255 Motion is timely,

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subject to equitable tolling, or should be dismissed as untimely.

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(2)

Movant may file a reply within 30 days from the date of service of the

government’s response to this Order.

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Dated this 10th day of June, 2014.

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