Pineda v. United States of America
Filing
8
OPINION AND ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255) as time-barred. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:09-cr-77-FTM-29CM), 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 10/13/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERTO PINEDA,
Petitioner,
v.
Case No: 2:15-cv-175-FtM-29CM
Case No. 2:09-CR-77-FTM-29CM
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion to
Vacate, Correct, or Amend the Petitioner’s Sentence Under 28 U.S.C.
Section 2255 (Cv. Doc. #1; Cr. Doc. #560) 1 and Affidavit (Cv. Doc.
#2) filed on March 13, 2015.
The government filed a Response in
Opposition to Motion (Cv. Doc. #7) on May 12, 2015.
I.
On October 27, 2009, a federal grand jury in Fort Myers,
Florida returned a five-count Superseding Indictment (Cr. Doc.
#104)
charging
petitioner
and
others
with
conspiracy
to
manufacture and possess with intent to distribute 1000 or more
1The
Court will make references 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.”
marijuana plants, and to distribute and possess with intent to
distribute 100 or more kilograms of marijuana, and with substantive
offenses.
Petitioner was named in Count Four charging him with
the manufacturing and possession with intent to distribute 100 or
more marijuana plants, but was not named in the other counts.
On April 23, 2010, petitioner appeared before a magistrate
judge for a change of plea hearing. (Cr. Doc. #260.)
agreement was entered into or filed.
No plea
In advance of the hearing,
the government filed a Notice of Penalties, Elements and Facts
(Cr. Doc. #256) indicating that the conspiracy in Count One carried
a minimum mandatory of 10 years up to life incarceration, and Count
Four carried a minimum mandatory of 5 years up to 40 years of
incarceration.
Petitioner declined to admit to the necessary
factual basis, and the plea was rejected by the Magistrate Judge.
On May 18, 2010, petitioner proceeded to trial with codefendants
Herman
Francisco Arevalo.
returned
a
Verdict
petitioner.
Torres,
Ivan
Curbelo,
(Cr. Doc. #306.)
of
guilty
(Cr. Doc. #326.)
on
Manuel
Torres,
and
After eight days, the jury
both
counts
charged
against
On August 16, 2010, the Court
issued an Opinion and Order (Cr. Doc. #384) denying petitioner’s
Motion for a New Trial.
On September 13, 2010, the Court sentenced
petitioner to a term of imprisonment of 120 months on each count,
to
be
served
concurrently,
followed
- 2 -
by
a
term
of
supervised
release.
(Cr. Doc. #415.)
September 14, 2010.
Judgment (Cr. Doc. #419) was filed on
Petitioner filed a Notice of Appeal (Cr. Doc.
#422), and the Eleventh Circuit affirmed the conviction on August
9, 2013.
2013).
United States v. Pineda, 532 F. App'x 863 (11th Cir.
Petitioner petitioned for a writ of certiorari, which was
denied on October 7, 2013.
Pineda v. United States, 134 S. Ct.
356 (2013).
On
August
12,
2016,
the
Court
denied
a
motion
for
the
retroactive application of Amendment 782 to the United States
Sentencing
Guidelines
because
petitioner
statutory minimum mandatory sentence.
was
sentenced
to
a
(Cr. Doc. #585.)
II.
Petitioner filed his motion under § 2255 on March 23, 2015.
Petitioner argues that the Assistant United States Attorney and
his “assistances” visited him in jail to present a copy of a plea
agreement, convinced him to plead guilty, and that he was told
that he would appear for sentencing in April 2010.
p. 2.)
(Cv. Doc. #1,
Petitioner states that he notified his counsel of the
county jail meeting, but that counsel instead asked him if the
prosecutor had failed to explain the plea agreement, and counsel
did
not
alert
the
Court
of
the
prosecutorial
misconduct.
Petitioner filed an Affidavit (Cv. Doc. #2) regarding the substance
of their discussion.
On April 23, 2010, petitioner appeared for
- 3 -
a change of plea hearing without the benefit of a plea agreement.
Petitioner argues that he did not have time to review the agreement
with his attorney, and that the plea agreement was not translated
into Spanish during an exchange in county jail.
Petitioner argues
that his attorney’s negligence caused him to proceed to trial.
Petitioner also argues that counsel failed to request a finding
with regard to the drug quantity because the entire amount was
attributed to him as part of the conspiracy and he only knew about
150 kilograms of marijuana.
Federal prisoners whose convictions became final after April
24, 1996, the effective date of The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), have one year from the latest
of any of four events to file a § 2255 Motion:
(1) the date on which
conviction becomes final;
the
judgment
of
(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 the exercise of due
diligence.
- 4 -
28 U.S.C. § 2255(f).
In this case, petitioner filed a petition
for certiorari, therefore he had through October 7, 2014, one year
from the denial of the writ, to file his federal habeas petition.
Giving petitioner the benefit of the mailbox rule 1, the motion
under § 2255 was placed into the prison mail system on March 11,
2015.
(Cv. Doc. #1-1.)
As a result, the motion is untimely from
the date petitioner’s conviction became final, and is due to be
dismissed.
28 U.S.C. § 2255(f)(1).
III.
Petitioner’s Motion may still be considered on the merits if
equitable tolling applies to the statute of limitations set forth
in 28 U.S.C. § 2255(f).
Sandvik v. United States, 177 F.3d 1269,
1271 (11th Cir. 1999).
See also Holland v. Florida, 130 S. Ct.
2549 (2010) (holding similar statute of limitations in 28 U.S.C.
§ 2244(d) is subject to equitable tolling).
A petitioner is
entitled to equitable tolling only if he 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, 130 S. Ct. at 2562.
See also Sandvik, 177 F.3d
at 1271; San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir.
“[A] prisoner's pro se § 2255 motion is deemed filed the date it
is delivered to prison authorities for mailing.” Washington v.
United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (citation
omitted).
1
- 5 -
2011).
The diligence required is reasonable diligence, and the
extraordinary
circumstance
prong
requires
a
causal
between the circumstance and the late filing.
F.3d at 1267.
gross
San Martin, 633
Serious attorney misconduct, including acts of
negligence
constitute
connection
and
acts
“extraordinary
of
outright
circumstances”
willful
which
deceit,
equitable tolling of a movant's § 2255 motion.
would
can
justify
Downs v. McNeil,
520 F.3d 1311, 1323 (11th Cir. 2008); see also Holland, 130 S. Ct.
at 2564 (holding that equitable tolling may be available in an
“extraordinary” instance in which the conduct of a petitioner’s
attorney constitutes more than “garden variety” or “excusable
neglect”).
Petitioner asserts simply that his motion is timely filed and
should
be
considered.
Petitioner
presents
no
argument
of
impediment, let alone one involving extraordinary circumstances as
to why the Court may review the motion.
Since there are no
extraordinary circumstances that would justify tolling in this
case, the Court finds that equitable tolling does not apply and
the motion must be dismissed as time-barred.
The Court notes that there was no plea agreement in this case,
and the jury specifically found petitioner guilty of 1000 or more
marijuana plants and 100 kilograms or more of marijuana when
presented with quantity options for the conspiracy charged in Count
- 6 -
One.
The Court finds that the narrow “actual innocence” exception
also
does
not
apply
procedural hurdle.
such
that
petitioner
could
overcome
the
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th
Cir. 2001).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Petitioner’s Motion Under 28 U.S.C. Section 2255 to
Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #1; Cr. Doc. #560) is DISMISSED as time-barred.
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, 183 (2009).
“A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
showing,
Petitioner
28 U.S.C. § 2253(c)(2).
“must
demonstrate
that
To make such a
reasonable
jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
- 7 -
(2004), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations 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
of October, 2017.
Copies:
Petitioner
AUSA
- 8 -
13th
day
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?