Maldonado v. United States of America
Filing
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ORDER dismissing as time-barred 1 Motion to vacate, set aside, or correct sentence (2255). Clerk shall close the case. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 4/5/2012. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GUADALUPE MALDONADO,
Petitioner,
v.
CASE NO. 8:12-CV-686-T-30TGW
CRIM. CASE NO. 8:09-CR-291-T-30TGW
UNITED STATES OF AMERICA,
Respondent.
________________________________/
ORDER
Maldonado’s motion to vacate pursuant to 28 U.S.C. § 2255 (CV Dkt. 1) challenges
the validity of his plea-based conviction for conspiracy to distribute, and possess with intent
to distribute five kilograms or more of cocaine. Maldonado pleaded guilty and was
sentenced to 91 months in prison to be followed by 5 years supervised release (CR Dkts. 31,
46). He did not appeal his conviction and sentence.
Rule 4, Rules Governing Section 2255 Cases, requires a preliminary review of the
motion to vacate. Section 2255 requires denial of the motion without a response if the
“motion and the files and records of the case conclusively show that the prisoner is entitled
to no relief . . . .” Accord Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980)1 (The
summary dismissal of a Section 2255 motion was proper “[b]ecause in this case the record,
uncontradicted by [defendant], shows that he is not entitled to relief.”); Hart v. United
1
Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued before October
1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
States, 565 F.2d 360, 361 (5th Cir. 1978) (“Rule 4(b) of § 2255 allows the district court to
summarily dismiss the motion and notify the movant if ‘it plainly appears from the face of
the motion and any annexed exhibits and the prior proceedings in the case that the movant
is not entitled to relief.’”). The motion to vacate is time-barred.
The Anti-Terrorism and Effective Death Penalty Act created a limitation for a motion
to vacate. “A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of (1) the date on which the judgment of conviction
becomes final . . . .” 28 U.S.C. § 2255(f). Because Maldonado’s conviction was final on
July 8, 2010,2 his limitation period expired one year later on July 7, 2011. Pursuant to the
mailbox rule,3 Maldonado’s motion to vacate is considered filed as of March 27, 2012, which
is the date he signed the motion (CV Dkt. 1 at docket page 13). Because the motion was filed
more than eight months too late, Maldonado’s motion to vacate is untimely.
Maldonado argues entitlement to equitable tolling.4 “[T]he timeliness provision in the
federal habeas corpus statute is subject to equitable tolling.” Holland v. Florida, ___ U.S.
___, 130 S. Ct. 2549, 2554 (2010). “Generally, a litigant seeking equitable tolling bears the
2
Because Petitioner did not appeal the judgment of conviction entered on June 23, 2010 (CR Dkt. 46),
it became final 10 business days later on July 8, 2010. See Adams v. United States, 173 F.3d 1339, 1342 (11th Cir. 1999)
(when defendant does not pursue direct appeal, conviction becomes final when time for filing a direct appeal expires).
3
Houston v. Lack, 487 U.S. 266, 276 (1988) ("[T]he notice of appeal was filed at the time
petitioner delivered it to the prison authorities for forwarding to the court clerk."); Adams, 173 F.3d at 1341 (a pro se
prisoner's motion to vacate is deemed filed on the date it is delivered to prison authorities for mailing).
4
On March 5, 2012, Maldonado filed a “Motion for Reconsideration of Sentencing Enhancement”
(CR Dkt. 49) in which he requested to be resentenced without the sentencing enhancement for possessing a firearm. This
Court denied the motion, instructed the Clerk to forward a 28 U.S.C. § 2255 form to Maldonado, and instructed
Maldonado that if he intended to file a § 2255 motion, he must show cause why the § 2255 motion would not be time
barred (CR Dkt. 50).
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burden of establishing two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005).
Maldonado argues that he was precluded from timely filing his § 2255 motion because
“English is [his] second language[,]” and he did not know until March 1, 2012, that he could
challenge the sentencing enhancement (CV Dkt. 1 at docket page 12). Maldonado’s alleged
difficulty with the English language does not justify equitable tolling. See United States v.
Montano, 398 F.3d 1276 (11th Cir. 2005) (difficulty with English justifies no equitable
tolling for filing a motion to vacate). Accord Cobas v. Burgess, 306 F.3d 441 (6th Cir. 2002),
cert. denied, 538 U.S. 984 (2003). Likewise, a prisoner’s pro se status or lack of legal
knowledge does not constitute extraordinary circumstances sufficient to warrant equitable
tolling of the limitation period. Rich v. Dep’t of Corrs., 317 Fed. Appx. 881, 883 (11th Cir.
2008) (unpublished) (finding pro se status is not extraordinary circumstance justifying
equitable tolling); Wakefield v. Railroad Retirement Board, 131 F.3d 967, 969 (11th Cir.
1997) (“Ignorance of the law usually is not a factor that can warrant equitable tolling.”);
United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (pro se status and ignorance of the
law does not justify equitable tolling).5
5
To the extent Maldonado asserts that he did not discover the legal basis for his claim until March 1,
2012, this would not trigger application of the § 2255(f)(4) limitation period to his § 2255 motion. See 28 U.S.C.
§ 2255(f) (“A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from
the latest of–. . .(4) the date on which the facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.”) (emphasis added).
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Accordingly, it is ORDERED that the motion to vacate pursuant to 28 U.S.C. § 2255
(CV Dkt. 1) is DISMISSED as time-barred. The clerk shall close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. 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). Rather, a district court
must first issue a certificate of appealability (“COA”). Id. “A [COA] may issue … only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id. at §
2253(c)(2). To merit a certificate of appealability, Petitioner must show that reasonable
jurists would find debatable both (1) the merits of the underlying claims and (2) the
procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.
473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because the § 2255
motion is clearly time-barred, Petitioner cannot satisfy the second prong of the Slack test.
529 U.S. at 484.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida on April 5, 2012.
SA:sfc
Copy to:
Guadalupe Maldonado, pro se
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