Felix v. USA

Filing 5

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Ronald M Whyte on 1/12/2015. (rmwlc2, COURT STAFF) (Filed on 1/12/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

SAN JOSE DIVISION
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UNITED STATES OF AMERICA,
Plaintiff,

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Case No. 14-CV-00408-RMW
Related to CR-07-00106-RMW-2

v.
ORDER DENYING MOTION
PURSUANT TO 28 U.S.C. § 2255;
DENYING CERTIFICATE OF
APPEALABILITY

FRANCISCO TORRES FELIX,
Defendant.

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[Re Dkt. Nos. 195 and 204]
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Defendant Francisco Torres Felix (“Felix”) moves under 28 U.S.C. § 2255 to set aside his

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conviction on the basis that (1) his sentence was imposed in violation of the right to speedy trial and

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(2) he was deprived of effective assistance of counsel. Because Felix’s motion is untimely and

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lacks merit, the court DENIES the motion.
I. BACKGROUND

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In February 2007, Felix was indicted on various gun and drug charges. Dkt. No. 11. 1 On

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May 18, 2009, the day his trial was scheduled to begin, Felix pleaded guilty to all charges. Dkt. No.

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103. The court sentenced Felix to 180 months imprisonment. Dkt. No. 135. Felix filed a direct

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appeal in November 2009. Dkt. No. 138. The Ninth Circuit affirmed the judgment on March 4,

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All docket numbers refer to the criminal docket, CR-07-00106.

ORDER
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2011. See United States v. Torres Felix, 418 F. Appx. 632, 2011 WL 760002 (9th Cir. 2011)

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(unpublished). The mandate issued March 30, 2011, and his conviction became final on June 2,

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2011. United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir. 2000) (conviction becomes final when

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the time for filing a petition for writ of certiorari elapses).

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Felix filed a prior “Motion to Reduce Sentence” on February 27, 2012, which the court

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denied. Dkt. Nos. 186, 189. The court treated this motion as a 28 U.S.C. § 2255 motion, but did not

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alert Felix that the recharacterization will subject subsequent § 2255 motions to the law’s “second or

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successive” restrictions. Castro v. United States, 124 S.Ct. 786, 789 (2003); United States v.

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Seesing, 234 F.3d 456, 462-64 (9th Cir. 2001). Accordingly, the current § 2255 motion is not

United States District Court
For the Northern District of California

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subject to § 2255’s “second or successive” provision. Id.

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II. ANALYSIS

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A. Timeliness

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Felix’s current motion was filed more than one year after his conviction became final. See

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Dkt. No. 185 (USCA Mandate) and Dkt. No. 195 (§ 2255 Motion). However, the statute of

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limitations in § 2255 is subject to equitable tolling. See, e.g., United States v. Battles, 362 F.3d

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1195, 1196 (9th Cir. 2004).

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To establish equitable tolling for § 2255 motion, Felix must establish that “(1) that he has

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been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”

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Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Felix alleges that his motion was delayed because

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he was not informed of the one-year limitation by his appellate counsel, he is not able to read and

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write in English or Spanish, and it took over a year to obtain the records in his case and develop his

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arguments. Dkt. No. 195 at 15-16. Even assuming that Felix was diligently pursuing his rights, none

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of his circumstances qualifies as exceptional.

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Felix relies primarily on his inability to obtain records from the court. Dkt. No. 202 at 2-3.

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The request for records was not filed until after the § 2255 deadline has passed. Dkt. No. 190 (letter

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requesting documents dated October 26, 2012). Because the records had not even been requested at

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the time the deadline passed, the lack of records could not be the “cause of his untimeliness.” Laws

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v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2002) (quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th
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Cir. 2003) (internal quotation marks and citation omitted)); United States v. Valenzuela-Chairez,

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225 F.3d 665 (9th Cir. 2000) (Affirming denial of § 2255 motion as untimely, and concluding

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“Valenzuela-Chairez has failed to explain either why he waited two years after his conviction

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became final to request his trial transcripts or why he needed these materials in order to file a timely

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section 2255 motion.”).

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Second, Felix’s lack of legal knowledge and illiteracy are not exceptional circumstances.

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Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A] pro se petitioner’s lack of legal

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sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”);

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Valenzuela-Chairez, 225 F.3d at 665 (“The district court properly concluded that Valenzuela-

United States District Court
For the Northern District of California

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Chairez’s language difficulties and alleged inability to obtain trial transcripts and other materials

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from his former attorneys did not make it “impossible” for Valenzuela-Chairez to timely file

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his section 2255 motion.”); United States v. Hernandez, No. 07-CV-2355 J, 2009 WL 1178664, at

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*4 (S.D. Cal. May 1, 2009) (“Petitioner’s lack of legal knowledge or English language fluency are

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difficult obstacles no doubt, but they are not extraordinary circumstances entirely beyond her

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control.”).

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Because Felix has not shown “extraordinary circumstances beyond his control existed which

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made it impossible for him to file a timely section [2255] petition,” Valenzuela-Chairez, 225 F.3d at

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665, the court denies the § 2255 petition as untimely.

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B. Felix’s Claims Are Waived And Procedurally Defaulted

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Even if Felix’s petition were timely filed, his speedy claim has been procedurally defaulted

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by his failure to the raise the claim in his direct appeal. Bousley v. United States, 523 U.S. 614, 622

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(1998). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review,

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the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and

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actual ‘prejudice’ or that he is ‘actually innocent.’” United States v. Braswell, 501 F.3d 1147, 1149 -

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1150 (9th Cir. 2007).
Felix cannot demonstrate cause or prejudice. 2 Felix attempts to meet these requirements by

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arguing that his counsel was constitutionally ineffective within the meaning of Strickland v.

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Felix does not argue that his is actually innocent.

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Washington, 466 U.S. 668 (1984), when they failed to raise the issue in his direct appeal. Felix

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argues that his attorneys were constitutionally ineffective because they stipulated to numerous time

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exclusions and did not file a suppression motion relating to certain evidence. As explained below,

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neither argument has merit, so Felix was not prejudiced by the failure to raise these issues on direct

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appeal.

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Second, his speedy trial and evidentiary arguments were waived when he pled guilty. “An

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unconditional guilty plea waives all nonjurisdictional, antecedent defects” including Speedy Trial

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Act claims and claims under the Sixth Amendment. United States v. Jackson, 697 F.3d 1141, 1144

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(9th Cir. 2012); United States v. O’Donnell, 539 F. 2d 1233, 1236– 36 (9th Cir. 1976), superseded

United States District Court
For the Northern District of California

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on other grounds as recognized by United States v. Smith, 60 F.3d 595 (9th Cir. 1995). Felix’s guilty

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plea also waived his claims relating to his suppression of evidence arguments. United States v.

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Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005).

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C. Ineffective Assistance of Counsel and Speedy Trial Rights

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To maintain a claim of ineffective assistance of counsel, Felix must show that his defense

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counsel’s performance was “objectively unreasonable.” See Strickland, 466 U.S. at 688. Felix has

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the burden of showing that (1) his defense counsel’s performance was deficient, and that (2) this

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deficient performance prejudiced his defense and deprived him of a fair trial. Id. at 687; United

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States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003).

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Felix argues that his attorneys were ineffective in stipulating to various extensions of time
and in failing to bring a suppression motion.
The stipulated exclusions of time were each justified by the defense attorneys’ need receive

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and review discovery, investigate the case and effectively prepare for trial. See, e.g., Dkt. No. 15

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(excluded from March 19, 2007, to April 23, 2007, because “[t]he defense needed time to review the

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discovery.”); Dkt. No. 16 (excluded from April 23, 2007, to May 14, 2007, because “[t]he defense

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needed time to review the discovery.”); Dkt. No. 17 (excluded from May 14, 2007, to June 25,

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2007, because “[t]he defendants need to request additional discovery.”). Different attorneys

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represented Felix during the course of his prosecution, and each needed additional time for

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preparation. As the extensions of time were stipulated to and justified by defense counsels’ need to
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prepare, stipulations to extensions of time did not violate Felix’s speedy trial rights under the

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Speedy Trial Act or the Sixth Amendment, and he did not suffer any prejudice from the extensions.

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Regarding the claim that prior counsel should have filed a suppression motion concerning

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the search of Felix’s car, there would have been no basis for this motion. Law enforcement had

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abundant probable cause to search the car Felix was driving.

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Felix also argues that the affidavit supporting the criminal complaint contains inconsistent

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statements with the superseding indictment, such that “on this basis alone, the reliability of the

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entire case should be frowned upon, doubted, no longer believed, much less trusted, and openly-

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mocked at.” Dkt. No. 195 at 12. This argument is not persuasive because the superseding indictment

United States District Court
For the Northern District of California

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was based on evidence found in a later search of Felix’s home, not the search of the car supporting

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the initial complaint. Dkt. Nos. 1 and 89.

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Felix fails to show prejudice resulting from either the stipulated exclusion of time or the

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failure to file the suppression motion. Accordingly, he has not shown that he was denied effective

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assistance of counsel or denied the right to a speedy trial. Strickland, 466 U.S. at 688

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D. “Motion to Raise an Unpleaded Issue”

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On September 25, 2014 the court received a letter from petitioner seeking “to raise an

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upleaded issue and it conform the pleadings to the evidence for suspicious circumstances involving

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the arrest of the Defendant.” Dkt. No. 204. The letter alleges that the criminal complaint is invalid

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because it was dated both February 9, 2007 and February 10, 2007. Dkt. No. 1. Felix was arrested

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the night of February 9, 2007. Specifically, the face of the complaint states that it was presented to

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the Magistrate Judge on February 9, but the affidavit in support of the complaint was not signed

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until February 10.

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The court does not find any basis for maintaining a challenge to the complaint. Felix does

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not explain how the February 9, 2007 date would render the complaint invalid, or cast on any doubt

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on the truthfulness of the facts laid out in the supporting affidavit. Additionally, any challenge to the

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complaint was waived when Felix plead guilty and failed to raise the issue on direct review.

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ORDER
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III. CERTIFICATE OF APPEALABILITY

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The federal rules governing habeas cases brought by federal prisoners require a district court
that denies a habeas petition to grant or deny a certificate of appealability in its ruling. See 28

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U.S.C. § 2253(c). For the reasons set out in the discussion above, petitioner has not shown “that
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jurists of reason would find it debatable whether the petition states a valid claim of the denial of a
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constitutional right [or] that jurists of reason would find it debatable whether the district court was
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correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a
certificate of appealability is denied.

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IV. ORDER
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United States District Court
For the Northern District of California

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For the reasons explained above, the court denies the § 2255 motion, the “motion to raise an
unpleaded issue,” and declines to issue a certificate of appealability.

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Dated: January 12, 2015

_________________________________
Ronald M. Whyte
United States District Judge

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ORDER
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