Torres v. United States of America
Filing
10
OPINION AND ORDER dismissing 1 Motion to vacate, set aside, or correct sentence (2255) as untimely. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:07-cr-122-FTM-29DNF), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 11/26/2012. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LAZARO TORRES,
Petitioner,
vs.
Case No.
Case No.
2:11-cv-119-FtM-29DNF
2:07-cr-122-FtM-29DNF
UNITED STATES OF AMERICA,
Respondent.
___________________________________
OPINION AND ORDER
This matter comes before the Court on petitioner Lazaro
Torres’ Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence By a Person in Federal Custody (Cv. Doc. #1; Cr.
Doc. #207)1 and Memorandum (Cv. Doc. #2; Cr. Doc. #208), both filed
on March 7, 2011.
The United States filed its Response in
Opposition to Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence, Pursuant to 28 U.S.C. § 2255 (Cv. Doc. #9) on April 25,
2011.
For the reasons set forth below, the motion is dismissed.
I.
On October 24, 2007, a federal grand jury in Fort Myers,
Florida returned a two-count Indictment (Cr. Doc. #45) charging
petitioner Lazaro Torres (petitioner or Torres) and four other co-
1
The Court will make reference to the dockets in the instant
action and in the related criminal case throughout this opinion.
The Court will refer to the docket of the civil habeas case as “Cv.
Doc.”, and will refer to the docket of the underlying criminal case
as “Cr. Doc.”
defendants with conspiracy to possess with intent to distribute
more than five kilograms of cocaine (Count One) and possession with
intent to distribute more than five kilograms of cocaine (Count
Two).
On April 9, 2008, petitioner pled guilty to Count Two of the
Indictment pursuant to a written Plea Agreement (Cr. Doc. #102).
(Cr. Docs. ## 101, 103, 104.)
On September 23, 2008, the Court
sentenced petitioner to an 87 month term of imprisonment, to be
followed by four years supervised release.
(Cr. Doc. #169.)
Judgment (Cr. Doc. #170) was filed on September 24, 2008.
On May 18, 2009, petitioner filed a pro se Notice of Appeal of
Final Sentence Pursuant to 18 § 3742 (Cr. Doc. #196) seeking to
appeal the sentence.
Petitioner also filed a motion to proceed in
forma pauperis on appeal (Cr. Doc. #197), which the district court
denied (Cr. Doc. #198) because the appeal was untimely filed.
On
January 19, 2010, the Eleventh Circuit Court of Appeals dismissed
the appeal as untimely filed (Cr. Doc. #206).
Petitioner filed his § 2255 motion on March 7, 2011.
Doc. #207.)
(Cr.
Read liberally, petitioner’s § 2255 Petition sets
forth the following claims: (1) Trial counsel provided ineffective
assistance by failing to file a notice of appeal as petitioner
requested; (2) Trial counsel provided ineffective assistance by (a)
failing to investigate witnesses who would have either exonerated
petitioner or established his minimal participation, (b) failing to
file a meaningful motion to suppress evidence, (c) failing to keep
-2-
petitioner appraised of his rights and potential defenses, (d)
failing to object to leading testimony, (e) making cumulative
errors and omissions which deprived petitioner of due process and
a
direct
petitioner
appeal,
at
and
(f)
sentencing,
failing
make
to
Rule
effectively
32
represent
objections
to
the
presentence report, and submit proper authority which would have
justified a downward departure; (3) The trial court committed
procedural error by failing to acknowledge and address petitioner’s
nonfrivolous fast-track disparity argument; (4) The Indictment was
defective and insufficient; (5) The sentence was too severe and was
unreasonable; and (6) The trial court committed error by failing to
grant a downward departure because, as an illegal alien, petitioner
was ineligible for minimum security confinement, drug programs, and
pre-release custody.
II.
As petitioner acknowledges (Cv. Doc. #1, p. 17), he filed no
notice of appeal within the time allowed to do so, and his § 2255
motion was also filed beyond the one year statute of limitations
period in 28 U.S.C. § 2255.
Read quite liberally, petitioner
asserts that he exercised due diligence in finding out that his
attorney did not file a notice of appeal as requested, and that
this tolled the running of the statute of limitations.
reflects otherwise.
-3-
The record
There is a one year statute of limitations period in which to
file a § 2255 motion.
28 U.S.C. § 2255(f).
The limitation period
begins to run from the latest of four events, two of which are
potentially applicable to this case.
The limitation period begins
to run from the latest of “the date on which the judgment of
conviction becomes final,” 28 U.S.C. § 2255(f)(1), or “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)(4).
As to the first triggering event, “when a defendant does not
appeal his conviction or sentence, the judgment of conviction
becomes final when the time for seeking that review expires.”
Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011).
See
also Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir.
2000).
In 2008, when petitioner was sentenced, defendants had ten
days from the date of the entry of judgment to file a notice of
appeal.
Fed. R. App. P. 4(b)(1)(A) (2009) (amended effective
December 1, 2009, to fourteen days). Intermediate weekends and
legal holidays were excluded from that ten-day period.
App. P. 26(a)(2) (2009).
Fed. R.
Petitioner’s judgment was filed on
September 24, 2008, his conviction became final ten days later, on
October 8, 2008, and his § 2255 petition was due by October 8,
2009. Under the “mailbox rule”, petitioner is deemed to have filed
the § 2255 motion on March 3, 2011, the date he signed the petition
-4-
while in custody and presumably the date he delivered it to prison
authorities for mailing.
Washington v. United States, 243 F.3d
1299, 1301 (11tgh Cir. 2001).
months
after
limitations,
the
and
expiration
the
This was approximately seventeen
of
petition
the
is
§
2255(f)(1)
therefore
statute
untimely
under
of
§
2255(f)(1).
Petitioner asserts that his §2255 petition is timely under §
2255(f)(4), which provides that a § 2255 petition may be filed
within one year of “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)(4).
Petitioner
alleges that he filed his § 2255 petition within one year of the
date he discovered his attorney had not filed a notice of appeal as
requested.
Where a petitioner alleges that his attorney failed to
file a requested direct appeal, the petitioner's motion to vacate
is timely if he “files within one year of discovering, through the
exercise of due diligence, that counsel did not file the requested
appeal.”
Long v. United States, 626 F.3d 1167, 1169 (11th Cir.
2010).
Petitioner made the discovery that his attorney had not filed
a notice of appeal from his conviction and sentence no later than
May 14, 2009, the date he signed his pro se Notice of Appeal of
Final Sentence Pursuant to 18 § 3742 (Cr. Doc. #196).
The Court
will assume this was the first date that due diligence would have
-5-
allowed
discovery
triggering
date
of
which
this
information.
starts
the
running
Using
of
this
the
as
statute
the
of
limitations, petitioner had until May 14, 2010 to file his § 2255
petition. His petition was filed in March, 2011, and therefore was
untimely under § 2255(f)(4).
Accordingly, it is now
ORDERED:
1.
Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, and to Correct, Sentence By a Person in Federal Custody (Cv.
Doc. #1) is DISMISSED as untimely.
2.
The Clerk of the Court shall enter judgment accordingly
and close the civil file.
The Clerk is further directed to place
a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district court’s
denial of his petition.
28 U.S.C. § 2253(c)(1); Harbison v. Bell,
556 U.S. 180 (2009).
“A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
To make such a
showing, Petitioner “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
-6-
or,
that
“the
issues
presented
were
adequate
to
deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations and internal quotation marks omitted).
Petitioner
has
not
made
the
requisite
showing
in
these
circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED at Fort Myers, Florida, this
November, 2012.
Copies:
Petitioner
Counsel of record
-7-
26th
day of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?