Fernandez v. United States of America

Filing 21

OPINION AND ORDER denying 20 Motion for Reconsideration. Signed by Judge John E. Steele on 10/22/2018. (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 for
Reconsideration

Order

September 25, 2018.

Under

Rule

59(e)

(Doc.

#20)

filed

on

No response has been filed, and the time to

respond has expired.
On September 5, 2018, the Court issued an Opinion and Order
(Doc. #280) dismissing 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) as time-barred.

The

Court noted that petitioner’s deadline was December 22, 2004, and
his motion was not filed until May 23, 2016.
Petitioner

argues

that

the

Court

made

a

clear

error

by

dismissing his petition as untimely because the time should have
been

equitably

tolled.

Petitioner

argues

that

he

faced

extraordinary circumstances from March 17, 2015, when he was
apprehended, until March 26, 2016 when he was transferred to the

custody

of

the

Bureau

of

Prisons

to

commence

his

sentence.

petitioner argues that he is entitled to a hearing because his
account of the events differs from the Court’s statements.

The

Court disagrees.
A Rule 59(e) motion may not be used “to relitigate old
matters, raise argument or present evidence that could have been
raised prior to the entry of judgment.” Arthur v. King, 500 F.3d
1335, 1343 (11th Cir. 2007) (quoting Michael Linet, Inc. v. Village
of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)).

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 v. Florida, 130 S. Ct. 2549, 2562 (2010).

See

also Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.
1999); San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011).
The

diligence

extraordinary

required

is

circumstance

reasonable

prong

requires

diligence,
a

between the circumstance and the late filing.

causal

and

the

connection

San Martin, 633

F.3d at 1267.
The relevant time period for equitable tolling was in 2004,
and immediately thereafter.

The period from March 2015 through

March 2016 is entirely irrelevant since there is no explanation
for what happened during the preceding decade that prevented
petitioner

from

filing.

As

petitioner

- 2 -

cannot

show

that

he

diligently pursued relief but was prevented from timely filing in
2004, the Court finds no basis for reconsideration.
Accordingly, it is hereby
ORDERED:
Petitioner's

Motion

for

Reconsideration

Order

Under

Rule

59(e) (Doc. #20) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of October, 2018.

Copies:
Petitioner
AUSA

- 3 -

22nd

day