Gonzalez v. USA

Filing 15

ORDER Articulating 14 Order denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255). The attached memorandum of decision further articulates the reasons for denial of Petitioner's motion. Signed by Judge Vanessa L. Bryant on 10/26/2018. (Bryan, Kelsey)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MARLON GONZALEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil No. 3:17-cv-1011 (VLB)
Criminal No. 3:00-cr-127
October 26, 2018

MEMORANDUM OF DECISION DENYING MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE UNDER 28 U.S.C. § 2255 [DKT. 1]
Petitioner, Marlon Gonzalez (“Petitioner” or “Mr. Gonzalez”), seeks to have
his conviction and sentence vacated pursuant to 28 U.S.C. § 2255. He claims three
grounds of ineffective assistance of counsel. However, Mr. Gonzalez failed to file
his petition within the one year statute of limitations set by AEDPA and has failed
to show that he is entitled to equitable tolling, nor does he show that he is entitled
to relief on the merits. Thus, as explained further below, Mr. Gonzalez’s § 2255
motion is DENIED.
Background
A grand jury indicted Marlon Gonzalez on November 19, 2014 for conspiracy
to possess with the intent to distribute cocaine and crack cocaine.

USA v.

Gonzalez, Case No. 14-cr-225 (hereinafter “Gonzalez”), [Dkt. 1 (Crim. Compl.)]. On
September 9, 2015, Mr. Gonzalez pled guilty to conspiracy to possess with intent
to distribute 280 grams or more of cocaine base in violation of 21 U.S.C §§ 841(a)(1),
841(b)(1)(A) and 846, as alleged in Count One of the indictment. Gonzalez, [Dkt.
1

206 (Plea Agreement)].

The violation carried a statutory mandatory minimum

sentence of incarceration of 120 months. Id. at 2.
In the Plea Agreement, the parties stipulated that a quantity of 280 grams of
cocaine base was reasonably foreseeable to Mr. Gonzalez as a result of his
participation in the conspiracy charged in Count One. Id. at 4. The parties further
stipulated that Mr. Gonzalez’s base offense level under U.S.S.G. § 2D1.1(C) is 30,
three levels would be added under U.S.S.G. § 3B1.1(b) as a result of Mr. Gonzalez’s
role as a manager or supervisor of the criminal activity, two levels would be added
under U.S.S.G. § 2D1.1(b)(1) because Mr. Gonzalez possessed a firearm during the
offense, and three levels would be deducted under U.S.S.G. § 3E1.1 for acceptance
of responsibility, assuming he remained eligible. Id. With a total offense level of
32 and a criminal history category of II, the applicable Sentencing Guidelines range
was 135 to 168 months of imprisonment. Id.
Petitioner's Plea Agreement states, "[t]he defendant acknowledges that
under certain circumstances he is entitled to challenge his conviction and
sentence. With the exception of habeas claims asserting ineffective assistance of
counsel, the basis for which the defendant neither knew, nor could have known, at
the time this plea agreement was entered into, defendant agrees not to appeal or
collaterally attack in any proceeding, including but not limited to a motion under
28 U.S.C. §2255 and/or §2241, the conviction or sentence imposed by the Court if
that sentence does not exceed 120 months of imprisonment." Gonzalez, [Dkt. 206
at 5]. He also signed a petition acknowledging his understanding of the terms of
the Plea Agreement. Gonzalez, [Dkt. 205 (Petition to Enter Plea of Guilty)]. Finally,

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this Court routinely advises each defendant at sentencing of their right to appeal,
the manner of filing an appeal, and of the right to be represented by counsel should
they choose to pursue an appeal, as well as reminding the defendant of the terms
of any appeal waiver in the plea agreement.

Thus, Petitioner was repeatedly

advised of and acknowledged understanding his right to appeal, his waiver of that
right and his right to file and the permissible bases for filing a habeas petition.
On January 20, 2016, this Court sentenced Mr. Gonzalez to the statutory
mandatory minimum of 120 months in prison, to be followed by a 4 year term of
supervised release. Gonzalez, [Dkt. 355 (Judgment)]. The final judgment was
entered on January 29, 2016. Id. Mr. Gonzalez did not pursue a direct appeal of
the judgment. The time to file a direct appeal expired 14 days after the entry of
judgment, February 14, 2016. See Fed. R. App. P. 4(b)(1)(A).
Mr. Gonzalez executed his § 2255 motion on June 13, 2017 and it was filed
with the Court on June 19, 2017. [Dkt. 1 (§ 2255 Motion)]. His initial § 2255 motion
was followed by a second motion with two addenda, which the Court understands
to actually be the memorandum of law in support of his motion which he cited to
in his initial motion, see [Dkt. 3], and later a reply to the Government’s response to
the order to show cause, see [Dkt. 9-1]. The Court has reviewed and taken into
account Petitioner’s arguments in each of these filings. The Court has also taken
into account Petitioner’s pro se status and construed his arguments liberally
accordingly. See Cruz v. Gomez, 202 F. 3d 593, 597 (2d Cir. 2000).
Mr. Gonzalez’s motion is based on a claim of ineffective assistance of
counsel on three grounds. First, Mr. Gonzalez argues that his attorney improperly

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failed to object to the insufficiency of the indictment, suggesting that the
Government failed to allege, and/or failed to prove, that Mr. Gonzalez knew he
possessed a controlled substance. [Dkt. 1 at 5]. Second, Mr. Gonzalez argues that
his counsel was ineffective for failing to object to the two level enhancement to his
offense level under U.S.S.G. §2D1.1(b)(1) for possession of a firearm during the
course of narcotics trafficking. [Dkt. 1 at 6]. And third, Mr. Gonzalez argues that
his counsel was ineffective for failing to object to the three level enhancement
under U.S.S.G. §3B1.1(b) for his role as manager or supervisor of an offense
involving five or more persons. Id. at 8.
The Respondent argues that Mr. Gonzalez’s motion fails because it is
untimely—he filed it more than one year after the judgment became final and there
is no basis for equitable tolling of the statute of limitations—and because his
claims are procedurally defaulted due to his failure to pursue them on direct appeal.
[Dkt. 5 (Resp. to Order to Show Cause) at 2-4]. In addition, Respondent argues that,
even if counsel was ineffective for failing to object to the sentencing
enhancements, Mr. Gonzalez was not prejudiced by those enhancements because
he received the minimum sentence required by statute—120 months. Id. at 4. The
sentence imposed represented a downward departure and variance below the
applicable recommended Guideline range calculated by the Court applying the
challenged enhancements. Consequently, the challenged enhancements did not
affect Petitioner's sentence.

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Legal Standard
Section 2255 enables a prisoner in federal custody to petition a federal court
to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Section 2255
imposes a one year period of limitation, 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 exercise of due diligence.” Id. at §
2255(f).
Relief under Section 2255 is generally available “only for a constitutional
error, a lack of jurisdiction in the sentencing court, or an error of law or fact that
constitutes a fundamental defect which inherently results in complete miscarriage
of justice.” Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (internal
quotation marks and citation omitted). Section 2255 provides that a district court
should grant a hearing “[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
Analysis
Mr. Gonzalez filed his § 2255 motion outside the one year statute of
limitations prescribed by § 2255(f). Under § 2255(f)(1), Mr. Gonzalez had one year

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from the time his judgment became final to file his motion. The judgment was
entered on January 29, 2016 and the time to appeal expired on February 14, 2016.
See Fed. R. App. P. 4(b)(1)(A). As such, Mr. Gonzalez had until February 14, 2017
to file his § 2255 motion. Mr. Gonzalez filed his motion no earlier than June 13,
2017—he signed the petition on June 13, 2017 and it was filed on the docket on
June 19, 2017—four months after the deadline passed. See [Dkt. 1]. Thus, Mr.
Gonzalez’s motion is untimely.
None of the three other provisions of § 2255(f) save Mr. Gonzalez’s motion.
Mr. Gonzalez does not argue that governmental action impeded his ability to bring
his motion under § 2255(f)(2), or that he is asserting a right newly recognized by
the Supreme Court under § 2255(f)(3), or that he discovered new facts that support
his claim under § 2255(f)(4). Thus, § 2255(f)(1) is Mr. Gonzalez’s only option, and
he failed to meet that deadline.
Mr. Gonzalez urges the Court to overlook any minor procedural inadequacies
associated with his motion and further suggests that, based on Raines v. United
States, 423 F. 2d 526 (4th Cir. 1970), his motion may be made at any time and any
delay in filing such a motion is not controlling. [Dkt. 3 at 2-3]. But Raines is a
Fourth Circuit decision from 1970, before Congress enacted the Antiterrorism and
Effective Death Penalty Act (hereinafter “AEDPA”), 28 U.S.C. § 2255, in 1996 setting
the one year statute of limitations.
Before AEDPA, there were few time restraints for prisoners seeking federal
post-conviction review. But allowing petitioners to file motions to vacate, set
aside, or correct their sentences at whatever point in time they may have chosen

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entirely frustrated the aim of finality of convictions and sentences. That finality “is
essential to the operation of our criminal justice system. Without finality, the
criminal law is deprived of much of its deterrent effect.” Teague v. Lane, 489 U.S.
288, 309 (1989). Further “a procedural system which permits an endless repetition
of inquiry into facts and law in a vain search for ultimate certitude implies a lack of
confidence about the possibilities of justice that cannot but war with the
effectiveness of underlying substantive commands.” McCleskey v. Zant, 499 U.S.
467, 492 (1991) (quoting Bator, Finality in Criminal Law and Federal Habeas Corpus
for State Prisoners, 76 Harv. L. Rev. 441, 452-53 (1963)). Recognizing this concern,
Congress enacted AEDPA to provide prisoners with the ability to challenge their
sentences, but imposed the one year deadline in order to serve the interest of
finality.
While AEDPA does not specifically allow for tolling, or pausing, of its one
year statute of limitations, the Supreme Court in Holland v. Florida, 560 U.S. 631
(2010), ruled that the limitations period may be tolled for non-statutory equitable
reasons in appropriate circumstances.

Such circumstances will exist only in

exceptional cases where the petitioner “shows (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). The Second Circuit has explained that, “[t]o equitably toll the one-year
limitations period, a petitioner must show that extraordinary circumstances
prevented him from filing his petition on time, and he must have acted with
reasonable diligence throughout the period he seeks to toll.” Hizbullahankhamon

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v. Walker, 255 F.3d 65, 75 (2d cir. 2001). Further, “[t]o show that extraordinary
circumstances prevented him from filing his petition on time, petitioner must
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.” Id.
In his reply brief, Mr. Gonzalez argues that he is entitled to equitable tolling
because of his attorney’s misconduct. [Dkt. 9-1 at 13-14]. Mr. Gonzalez briefly
suggests that his attorney failed to communicate with him, and specifically, to tell
him of his right to pursue a direct appeal. Id. at 14.
Courts have recognized that, under certain circumstances, serious attorney
misconduct can qualify as an extraordinary circumstance warranting equitable
tolling. See, e.g., Holland, 560 U.S. at 652-53; Baldayaque v. United States, 338 F.3d
145, 152 (2d Cir. 2003). “[S]imple mistakes about the rules applied to the deadlines
for filing of habeas petitions,” which are ordinary, do not rise to the level of
extraordinary circumstances. Baldayaque, 338 F.3d at 152. But extraordinary
circumstances may exist where habeas counsel failed in some extreme way to
communicate with his or her client and apprise him or herself of the AEDPA filing
deadline. See, e.g., Holland, 560 U.S. at 652-53 (finding that attorney’s failure to
research basic deadlines, communicate with his client, and file his client’s petition
despite numerous and repeated attempts by the client to emphasize the importance
of the filing may amount to extraordinary circumstances warranting equitable

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tolling); Baldayaque, 338 F.3d at 152 (allowing tolling where attorney failed to
communicate with the client and apprise him of the status of the case or do any
research regarding the filing deadline).
For instance, in United States v. Martin, cited by Mr. Gonzalez, the Eighth
Circuit concluded that the petitioner’s habeas counsel lied to him about the filing
deadline and the status of the case, failed to communicate with the petitioner,
neglected to file any documents on the petitioner’s behalf, and refused to return
the petitioner’s original paperwork despite repeated requests to do so. 408 F.3d
1089, 1094-95 (8th Cir. 2005). Because the petitioner had diligently pursued his §
2255 claim even as his attorney misled him, he satisfied the conditions under
Holland and was entitled to equitable tolling. Id.
Mr. Gonzalez filed his § 2255 motion pro se and did not at any point, to the
Court’s knowledge, have counsel advising him in this proceeding. Mr. Gonzalez
does not suggest that he had entrusted counsel with filing his § 2255 motion and
that counsel failed to timely file despite Mr. Gonzalez’s diligent efforts otherwise.
Rather, Mr. Gonzalez suggests that his trial counsel failed to inform him of his right
to file a direct appeal. Mr. Gonzalez's claim that he was not advised of his appeal
rights or of habeas relief is wanting because he was repeatedly advised of his
rights to appeal and file a habeas petition and his waiver of certain of those rights
by this Court.
Nevertheless, any perceived failure of counsel to advise Petitioner of his
appeal rights is wholly unrelated to Mr. Gonzalez’s failure to timely file his § 2255
petition and Mr. Gonzalez does not make any arguments that some other

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extraordinary circumstance prevented him from filing within the AEDPA one year
statute of limitations. Mr. Gonzalez has not shown that he is entitled to equitable
tolling and his petition is untimely. Nor has he shown that he would have been
entitled to relief on the merits had it been timely filed. Therefore, his motion is
DENIED.
Because Mr. Gonzalez’s motion fails on timeliness grounds, the Court does
not reach the other procedural issues raised by Respondent or the merits of
Petitioner’s claims of ineffective assistance of counsel beyond the cursory
considerations contained herein for the purpose of weighing the equity of adhering
to the filing deadline.
Conclusion
For the foregoing reasons, Mr. Gonzalez’s § 2255 motion to vacate, set aside,
or correct sentence is DENIED. Additionally, because Mr. Gonzalez’s claims are
both unquestionably time barred and without substantive merit, a certificate of
appealability is DENIED. The Clerk is directed to close this case.

IT IS SO ORDERED
__________/s/____________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: October 26, 2018

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