Fernandez v. United States of America

Filing 18

OPINION AND ORDER denying as moot 13 motion to amend/correct and supplement; denying as moot 14 Motion to expand record; denying as moot 16 Motion for Writ of Mandamus; denying as moot 17 Motion for due process; and dismissing 1 Moti on 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. 2:03-cr-113-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 9/5/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
VICTOR FERNANDEZ,
Petitioner,
v.

Case No: 2:16-cv-404-FtM-29CM
Case No. 2:03-CR-113-FTM-29CM

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on 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.
#271) 1 filed on May 26, 2016.

The government filed a Response to

Petitioner’s Motion (Cv. Doc. #6) on July 13, 2016.

Petitioner

filed a Reply (Cv. Doc. #10) on November 2, 2016.
I.
On October 1, 2003, a federal grand jury in Fort Myers,
Florida returned a two-count Indictment (Cr. Doc. #1) charging
Victor

Fernandez

(Petitioner)

and

others

in

Count

One

with

knowingly and willfully conspiring to possess with intent to
distribute one thousand kilograms or more of marijuana in violation

1The

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.”

of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii) and in Count Two with
knowingly and willfully possessing with intent to distribute one
hundred kilograms or more of marijuana in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(vii).
On January 26, 2004, Petitioner entered into a written plea
agreement as to Count Two of the Indictment.

(Cr. Doc. #119.)

On

January 29, 2004, the guilty plea was accepted and Petitioner was
adjudicated guilty as to Count Two.

(Cr. Doc. #132.)

was scheduled to be sentenced on April 26, 2004.

Petitioner

(Cr. Doc. #132.)

On March 19, 2004, a Magistrate Judge issued an arrest warrant for
Petitioner for his failure to report to his Pretrial Services
Officer and for leaving the United States in violation of the
conditions of his pretrial release.

(Cr. Doc. #152.)

On May 3, 2004, the Court sentenced Petitioner in absentia to
a term of imprisonment of 151 months as to Count Two, followed by
a term of supervised release and a special assessment of $100.00.
(Cr. Doc. #197, 11:17-12:11.)

The government dismissed Count One

at

(Id.,

the

sentencing

hearing.

apprehended on March 17, 2015.

13:4-10.)

(Cr. Doc. #251.)

Petitioner

was

On May 26, 2016,

Petitioner filed a Motion to Vacate, Set Aside, or Correct Judgment
and Sentence Pursuant to 28 U.S.C. § 2255 (Cv. Doc. #1; Cr. Doc.
#271), to which the government filed a Response (Cv. Doc. #6) on

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July 13, 2016 and Petitioner filed a Reply (Cv. Doc. #10) on
November 2, 2016.
II.
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.
28 U.S.C. § 2255(f).

When a federal prisoner files a direct appeal

of a conviction and sentence, the sentence becomes final 90 days
after “the entry of judgment on direct appeal and the expiration
of the certiorari period.”

Kaufmann v. United States, 282 F.3d

1336, 1338 (11th Cir. 2002).

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The Eleventh Circuit dismissed Petitioner’s direct appeal on
September 23, 2004.

(Cr. Doc. #210.)

Whether or not Petitioner

filed a petition for certiorari, he “gets the benefit of up to 90
days between the entry of judgment on direct appeal and the
expiration of the certiorari period.”

Kaufmann v. United States,

282 F.3d 1336, 1338 (11th Cir. 2002).

Therefore, Petitioner’s

conviction became final ninety days after his appeal was dismissed,
and Petitioner had through December 22, 2004 to file his federal
habeas petition.

Giving Petitioner the benefit of the mailbox

rule 1, the motion under § 2255 was signed and executed on May 23,
2016.

(Cv. Doc. #1; Cr. Doc. #271.)

As a result, the motion is

untimely from the date Petitioner’s conviction became final.

28

U.S.C. § 2255(f)(1).
The Court will also consider whether a later date may apply
under

§

2255(f)

because

Petitioner

seeks

the

retroactive

application of the rights recognized in Padilla v. Kentucky, 559
U.S. 356 (2010).

However, in Chaidez v. United States, 568 U.S.

342, 358 (2013), the Supreme Court held that Padilla does not apply
retroactively
alternative

to
start

cases
date

on
to

collateral
the

one-year

review.

Thus,

limitation

under

the
§

“[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

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2255(f)(3) is inapplicable, and Petitioner’s Motion is due to be
dismissed as time-barred.
Petitioner

argues

that

his

Petition

is

not

time-barred

because he was involuntarily sentenced in absentia, thus altering
the

applicable

Petitioner’s

§

2255

affidavit,

limitations
prior

to

period.
his

According

sentencing

to

hearing,

Petitioner’s sister-in-law and uncle “had been kidnapped and were
being held for ransom” in El Salvador.

(Cv. Doc. #15, p. 1.)

Thus, Petitioner left the United States for El Salvador to pay the
ransom

and

to

“free

[his]

family

members

.

.

.

.”

(Id.)

Petitioner contends that these “‘uncontrollable circumstances’”
made it “impossible to comply with the release agreement” and be
present at his sentencing hearing.

(Cv. Doc. #13, p. 1.)

The

Court disagrees.
Federal Rule of Criminal Procedure Rule 43(c)(1)(B) provides
that a defendant may be sentenced in absentia “in a noncapital
case, when the defendant is voluntarily absent during sentencing.”
Although the circumstances in El Salvador were beyond Petitioner’s
control, they did not make it impossible for Petitioner to attend
his sentencing hearing, nor did they render Petitioner’s absence
involuntary.

Indeed,

while

there

is

only

minimal

case

law

examining what constitutes an involuntary absence from sentencing,
courts have typically only found defendants involuntarily absent
when the defendant is incapable of attending.

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See United States

v. Novaton, 271 F.3d 968, 997 (11th Cir. 2001) (holding that
defendant was involuntarily absent “during the periods of time
when [he] was hospitalized”); United States v. Achbani, 507 F.3d
598, 602 (7th Cir. 2007) (noting that “a defendant taken into legal
custody” or “a defendant who has been hospitalized due to illness”
is involuntarily absent); United States v. Melo-Valencia, No. CR
04-2197 JB, 2010 WL 2977619, at *4 (D.N.M. June 28, 2010) (finding
defendant involuntarily absent because the United States Border
Patrol prevented the defendant from entering the United States for
sentencing, even though he would have “voluntarily present[ed]
himself for sentencing if he could”).

Here, Petitioner was not

incapable of being present at the sentencing hearing, but instead
left the United States without notifying the Court in violation of
his pretrial release.
Petitioner’s

Motion

Thus, for the reasons set forth supra,
is

time-barred

and

will

therefore

be

dismissed.
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. #271) is DISMISSED as time-barred.
2.

The Clerk of the Court shall enter judgement accordingly,

terminate any pending motions, and close the civil file.

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The

Clerk is further directed to place a copy of the civil judgment in
the criminal file.
3.

Petitioner’s Motion to Amend and Supplement (Doc. #13)

and Motion to Expand the Record Pursuant to Rule 7 Governing
Motions Under § 2255 (Doc. #14) are DENIED as moot as the original
motion is dismissed as time-barred.
4.

Petitioner’s Petition for Writ of Mandamus (Doc. #16) and

Motion for Due Process (Doc. #17) are also DENIED as moot as a
decision has now been rendered.
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
(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.

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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
September, 2018.

Copies:
Petitioner
AUSA

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5th

day of