Franco-Pou v. USA

Filing 21

ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence. The clerk shall enter judgment and close the file. Signed by Judge Stefan R. Underhill on 6/3/2015. (Pollack, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOSE A. FRANCO-POU,
Petitioner,

No. 3:12-cv-1334 (SRU)

v.
UNITED STATES OF AMERICA,
Respondent.
RULING ON MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
On October 13, 2004, Jose A. Franco-Pou 1 pleaded guilty to Count One of a federal
indictment charging him with conspiracy to distribute and to possess with the intent to distribute
five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846.
At sentencing on March 3, 2005, I determined that the applicable sentencing range was 168 to
210 months of imprisonment, and I sentenced Franco-Pou to 174 months of imprisonment
followed by five years of supervised release. Judgment entered on March 7, 2005. Franco-Pou
subsequently filed and then withdrew a notice of appeal, and on June 17, 2005, the Second
Circuit Court of Appeals issued a Mandate acknowledging dismissal of the appeal. Almost six
and a half years later, on November 21, 2011, Franco-Pou filed a letter motion requesting the
sentencing transcripts and plea agreements of his co-defendants so that he could prepare a
petition pursuant to 28 U.S.C. § 2255 and describing his claims under that statute. Because a
petition under section 2255 would have been untimely, I denied that motion without prejudice,
allowing Franco-Pou to resubmit within thirty days upon a showing of good cause to toll the
statute of limitations. Franco-Pou v. United States, 3:11-cv-1859 (SRU) (D. Conn. Jan. 30,
2012). Franco-Pou did not resubmit within thirty days, but some seven months later, on
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In his criminal case, Franco-Pou was identified as Jose Antonio Franco, but he has used the
name Jose A. Franco-Pou in subsequent filings.

September 17, 2012, he filed a petition under section 2255 (doc. # 1) elaborating on the claims
that he had described in his earlier motion (and without giving good cause for tolling the statute
of limitations). I transferred the petition to the Court of Appeals as a second or successive
petition within the meaning of 28 U.S.C. § 2244 (doc. # 2), and because the first motion was not
styled as a section 2255 petition, the Court of Appeals issued a Mandate returning the matter for
consideration as an initial petition (doc. # 4).
As I indicated in my denial of the initial motion, a section 2255 petition in this case is
untimely, and that is true whether considering only the present petition or construing the initial
motion as such a petition. The Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) “had among its goals [the prevention of] undue delays in federal habeas review,”
Wims v. United States, 225 F.3d 186, 189 (2d Cir. 2000) (quotation omitted), and to that effect it
imposed a one-year limitations period for section 2255 petitions. See 28 U.S.C. § 2255(f). That
period is far exceeded in this case: after Franco-Pou withdrew his appeal and the Second Circuit
issued its Mandate, approximately six and a half years passed before he filed his initial motion,
and more than seven years passed before he filed the present petition. Though Franco-Pou does
not address the delay within his petition, he argues in his reply to the government’s opposition
that the statute of limitations should be equitably tolled. He offers various grounds for tolling, or
for allowing the petition notwithstanding untimeliness, including his inability to understand and
write in English, the retroactive application of several Supreme Court cases relating to habeas
petitions, allegedly newly discovered evidence, actual innocence, and the avoidance of manifest
injustice. I do not find merit in any of those arguments.
“Equitable tolling applies only in the rare and exceptional circumstance. In order to
equitably toll the one-year period of limitations, [the petitioner] must show that extraordinary

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circumstances prevented him from filing his petition on time. In addition, the party seeking
equitable tolling must have acted with reasonable diligence throughout the period he seeks to
toll.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (quotations and citations omitted).
Franco-Pou has not shown “rare and exceptional circumstances,” let alone that such
extraordinary circumstances prevented him from filing his petition—which is to say, that such
circumstances caused the very long delay between the judgment of his conviction and his filing a
habeas petition. See Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (“The word ‘prevent’
requires the petitioner to demonstrate a causal relationship between the extraordinary
circumstances on which the claim for equitable tolling rests and the lateness of his filing, a
demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have
filed on time notwithstanding the extraordinary circumstances.”). Nor has he shown “reasonable
diligence” throughout the period of delay.
A lack of English proficiency, though it surely presents formidable challenges, has not
been held sufficient by itself to justify tolling. See, e.g., Mendez v. Artuz, No. 99 CIV. 2472
(DLC), 2000 WL 991336, at *2 (S.D.N.Y. July 19, 2000) (“[Petitioner]’s statement that he is not
proficient in the English language is insufficient to warrant equitable tolling. Such a limitation,
under which numerous pro se inmate petitioners suffer, does not amount to ‘extraordinary
circumstances’ and accordingly, courts have repeatedly rejected such an argument.”); Martinez v.
Kuhlmann, No. 99 CIV. 1094 (MBM), 2000 WL 622626, at *3 (S.D.N.Y. May 15, 2000) (“[T]o
permit equitable tolling in all cases involving [difficulty with the English language and
insufficiency of legal assistance] would frustrate the statute’s objectives, because many inmates
could make the same claims.”). The Second Circuit has allowed that the inability to read English
“can, in some circumstances, justify equitable tolling,” Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir.

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2008), but the Court cautioned that “the diligence requirement of equitable tolling imposes on
the prisoner a substantial obligation to make all reasonable efforts to obtain assistance to mitigate
his language deficiency.” Id. The Court affirmed the rejection of tolling in that case, observing
that the petitioners had not shown “efforts to contact anyone outside the prison who might assist
in making them aware, in their language, of legal requirements for filing a habeas corpus petition,
nor what efforts were made to learn of such requirements within their places of confinement.” Id.
The period of delay in the present case far exceeds the statute of limitations—and is far greater
than the delay in Diaz v. Kelly 2—and Franco-Pou has not shown that he “acted with reasonable
diligence” throughout that period.
Franco-Pou’s other arguments for tolling also fail. He argues that the statute of
limitations should be tolled as a result of several Supreme Court cases (or that he should
otherwise benefit from their retroactive application)—specifically Alleyne v. United States, 133 S.
Ct. 2151 (2013); McQuiggin v. Perkins, 133 S. Ct. 1924 (2013); Lafler v. Cooper, 132 S. Ct.
1376 (2012); and Missouri v. Frye, 132 S. Ct. 1399 (2012)—but all are inapposite. Franco-Pou is
correct that both Lafler v. Cooper and Missouri v. Frye pertain to the effectiveness of counsel in
plea negotiations, but even if they spoke to the issue of tolling (they do not) or should be applied
retroactively, neither applies to the facts of the present case. The Supreme Court held in Lafler v.
Cooper that the defendant had been prejudiced by counsel’s deficient performance in advising
him to reject a plea deal and proceed to trial. It held in Missouri v. Frye that counsel was
ineffective for failing to communicate to the defendant the government’s plea offer before it
expired. Neither circumstance is present in this case, and Franco-Pou makes no allegation to the

2

The three petitioners in that case missed their habeas filing deadlines by “more than four
months,” “nearly eleven months,” and “about three and a half months,” respectively. 515 F.3d at
152.
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contrary. In McQuiggin v. Perkins, the Supreme Court held “that actual innocence, if proved,
serves as a gateway through which a petitioner may pass” the impediment of an expired statute
of limitations, but it “caution[ed] … that tenable actual-innocence gateway pleas are rare: ‘[A]
petitioner does not meet the threshold requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.’” 133 S. Ct. 1924, 1928 (2013) (quoting Schlup v. Delo, 513 U.S.
298, 329 (1995)). Franco-Pou points to no new evidence, and he does not approach the very high
bar for showing actual innocence. Lastly, the Supreme Court in Alleyne held that any fact that
increases the mandatory minimum sentence is an “element” of the crime that must be submitted
to the jury, and not a mere “sentencing factor” that can be applied by the judge at sentencing.
That was an extension of the logic of Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the
Court held that any fact (other than the fact of a prior conviction) that increases the penalty
beyond the statutory maximum must be submitted to the jury. In Franco-Pou’s case, however,
the court found no fact that increased the penalty beyond the statutory maximum, and the
mandatory minimum was triggered not by a finding of the court at sentencing but by the conduct
and drug quantity to which Franco-Pou pleaded guilty. Alleyne and Apprendi therefore offer him
no relief.
Franco-Pou argues that the statute of limitations should be equitably tolled because of
newly discovered evidence, but he does not point to any such evidence, alleging only that what
he claims is an unjustified disparity between his sentence and that of his codefendants is new to
him, because he did not know about it earlier. He does not in fact establish unjustified disparity,
or why it should have taken him so many years to discover it. I cannot find, as Franco-Pou
argues, that tolling the statute of limitations is necessary to avoid a manifest injustice.

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For all of those reasons, I conclude that Franco-Pou has not met his burden to show the
propriety of tolling AEDPA’s one-year statute of limitations or to allow his petition to proceed
notwithstanding its untimeliness. Moreover, even if tolling were appropriate, the arguments
Franco-Pou makes in his section 2255 petition are not persuasive. He argues that his attorney
gave him unconstitutionally ineffective assistance during plea negotiations and that he would not
have accepted his plea agreement if he had understood that he was waiving appellate rights, but
in fact his plea agreement contains no such waiver; on the contrary, it indicates that “[t]he parties
reserve their respective rights to appeal.” Plea Agreement at 4, United States v. Jose Antonio
Franco, 3:04-cr-40 (SRU) (D. Conn. Oct. 1, 2004) (doc. # 147). Even if he had waived his
appellate rights, his argument would be undermined by the fact that he has not pursued those
rights—he withdrew his appeal and then waited approximately six and a half years to make
another filing—and neither does he suggest any particular basis for an appeal that he has not
pursued. He disputes his Guidelines calculation by denying he had a manager role or the drug
quantities used in the calculation, but those are bald denials. He argues that he is entitled to relief
on the basis of several Supreme Court cases already discussed with respect to equitable tolling,
but for the reasons already stated, those cases do not apply.
Because Franco-Pou’s petition is time-barred, because he has not met his burden to show
that equitable tolling should be applied, and moreover because, even if he were entitled to tolling,
his arguments are not meritorious, his petition is denied. The clerk shall enter judgment and close
the file.
So ordered.

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Dated at Bridgeport, Connecticut, this 3rd day of June 2015.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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