Cordobo-Rodriguez v. USA
Filing
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ORDER denying 1 Motion to vacate/set aside/correct sentence (2255).The Clerk is to enter judgment for Respondent, United States of America, terminate any pending motions, and close this case. The Clerk is directed to terminate from pending status the motion to vacate found at Dkt.#133, in the underlying criminal case, case number 8:09-cr-223-T-30EAJ. 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 7/19/2013. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CARLOS CORDOBO-RODRIGUEZ,
Petitioner,
v.
CASE NO: 8:13-CV-23-T-30EAJ
Crim. Case No: 8:09-CR-223-T-30EAJ
UNITED STATES OF AMERICA,
Respondent.
/
ORDER
THIS CAUSE comes before the Court upon Petitioner’s Motion to Vacate, Set
Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“Petition”) (CV Dkt. #1) and
Memorandum in support (CV Dkt. #2) filed on January 2, 2013. The Government
responded in opposition (CV Dkt. #7) on April 10, 2013. There are two deficiencies in
the Petition: (1) the case on which Petitioner relies, U.S. v. Bellaizac-Hurtado, 700
F.3d 1245 (2012), is inapplicable to the instant case; and (2) the Petition is outside the
one-year filing limitation period, and therefore time-barred pursuant to § 2255(f)(1).
BACKGROUND
Petitioner claims that he is actually innocent, and that the Court lacked jurisdiction
to hear his case. Petitioner also claims he had ineffective assistance of counsel for failing
to raise the jurisdictional issue.
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Petitioner executed a plea agreement on September 23, 2009, and pled guilty to:
(1) while being on “a vessel subject to the jurisdiction of the United States, conspir[ing]
to operate and embark by any means in a semi submersible vessel without nationality and
with the intent to evade detection into, through, or from waters beyond the outer limit of
that country’s territorial sea with an adjacent country,”1; and (2) “conspiracy to possess
with intent to distribute five (5) or more kilograms of cocaine and one thousand (1000)
kilograms or more of marijuana, while on board a vessel subject to the jurisdiction of the
United States.”2 The Court sentenced Petitioner to 135 months incarceration, which was
later amended to 87 months.
DISCUSSION
Petitioner contends he is actually innocent because this Court lacked jurisdiction
over him. For support he relies on the Bellaizac-Hurtado case. 700 F.3d at 1245-62. This
Court will address first jurisdiction and the application of Bellaizac-Hurtado case, then
the pertinent issue of timeliness.
1 Both
(1) & (2) make up count one that is a violation of 18 U.S.C. §§ 2285(a) and (b). “Whoever
knowingly operates, or attempts or conspires to operate, by any means, or embarks in any . . .
semi-submersible vessel that is without nationality and that is navigating or has navigated into,
through, or from waters beyond the outer limit of the territorial sea of a single country or a lateral
limit of that country’s territorial sea and with an adjacent country, with intent to evade detection,
shall be fined . . . , imprisoned not more than 15 years or both.” 18 U.S.C. § 2285(a). And,
“configuration of the vessel to ride low in the water or present a low hull profile to avoid being
detected visually or by radar.” 46 U.S.C. § 70507(1)(A).
2
This makes up count three that is a violation of 46 U.S.C. §§ 70503(a)(1), “[a]n individual may
not knowingly or intentionally manufacture or distribute, or possess with intent to manufacture
or distribute, a controlled substance on board . . . a vessel subject to the jurisdiction of the United
States;
70506(a), punishment according to the Abuse Prevention and Control Act of 1970,; 70506(b),;
and 21 U.S.C. § 960(b)(1)(B)(ii).
2
U.S. v. Bellaizac-Hurtado and Ineffectiveness Assistance of Counsel
Petitioner claims “Congress was never given the power to gran[t] the Justice
Department power to prosecute drug offenses committed in other countries[’] territorial
water.” It is true that this is the holding of U.S. v. Bellaizac-Hurtado, 700 F.3d at 1245,
which is applicable to persons apprehended in territorial waters of foreign countries. But,
this case does not apply to Petitioner because he was apprehended in international waters.
In U.S. v. Bellaizac-Hurtado, the 11th Circuit held that the Offenses Clause of the
Maritime Drug Law Enforcement Act (MDLEA) was unconstitutional in its application
because drug trafficking is not a violation of customary international law. 700 F.3d at
1258. In that case, defendants were found and captured in Panamanian territorial, not
international, waters. Thus, United States did not have jurisdiction.
The instant case is distinguishable from U.S. v. Bellaizac-Hurtado because
Petitioner was on board a vessel in international waters when taken into custody. (CR
Dkt. #62). In his Petition, Petitioner states he “was arrested on board a vessel on Costa
Rican territorial waters and not in the jurisdiction of the United States.” (CV Dkt. #1).
But, this is contrary to Petitioner’s own admissions in his plea agreement: “[o]n May 6,
2009, US marine patrol aircraft (MPA) sighted an [self-propelled semi-submersible]
approximately one hundred nautical miles off the coast Costa Rica, in international
waters.” (CR Dkt. #62) (emphasis added). Moreover, Petitioner agreed that he was a
“knowing and willing participant[] in a maritime drug smuggling venture in the
international waters.” (CR Dkt. #62) (emphasis added).
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Petitioner’s claims lack merit because “[t]he United States generally recognizes
the territorial seas of foreign nations up to twelve nautical miles adjacent to recognized
foreign coasts.” U.S. v. McPhee, 336 F.3d 1269, 1273 (2003). Petitioner was clearly
outside Costa Rican territorial waters. He will not now be heard to refute his admissions
to the Court.
Petitioner further claims Bellaizac-Hurtado overturned U.S. v. Tinoco, 304 F.3d
1088 (2002), which held the MDLEA constitutional as to persons apprehended in
international waters. Petitioner is mistaken. In Bellaizac-Hurtado, the 11th
Circuit
expressly states they “have always upheld extraterritorial convictions under our drug
trafficking laws as an exercise of power under the Felonies Clause.” 700 F.3d at 1257.
Thus, it is clear that Bellaizac-Hurtado did not overturn Tinoco.
Lastly, Petitioner claims that he received deficient legal assistance because his
lawyer did not argue that the MDLEA was unconstitutional and that the Court lacked
jurisdiction. However, as explained, these claims are without merit. Therefore, the
Petitioner’s ineffective assistance of counsel claim is without merit. It is not ineffective
assistance to fail to make meritless arguments.
Time Bar and Actual Innocence
This case is barred by the one-year limitation. Under 28 U.S.C. § 2255(f)(1), “[a]
1-year period of limitation shall apply to a [2255] motion . . . . The limitation period shall
run from . . . the date on which the judgment of conviction becomes final.” Petitioner’s
conviction was entered on December 21, 2009. (CR Dkt. #96). Petitioner had ten days
from the judgment, until December 31, 2009, to appeal. Petitioner did not appeal, and
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therefore the one-year limitation period began to run December 31, 2009, and expired
December 31, 2010. The amended sentence does not reset the one-year limitation period.
Murphy v. U.S., 634 F.3d 1303 (11th Cir. 2011). Consequently, this Petition is timebarred because it was filed on January 2, 2013, over two years past the limitation
expiration. Therefore, the Petition must be dismissed unless Petitioner can show
entitlement to equitable tolling or that he is factually innocent.
A § 2255 petition’s one-year limitation period “may be equitably tolled.” Sandvik
v. U.S., 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam). Equitable tolling “‘is
appropriate when a movant untimely files because of extraordinary circumstances that are
both beyond his control and unavoidable even with diligence.’” Jones v. U.S., 304 F.3d
1035 (11th Cir. 2002) (quoting Sandvik, 177 F.3d at 1271). For instance, a showing of
new evidence that disproves Petitioner’s charges could be germane to allow equitable
tolling. Jones, 304 F.3d at 1041. This remedy is permitted only in rare occasions. Id. at
1038. Petitioner does not claim equitable tolling, thus this is not an issue.
Instead of equitable tolling, Petitioner claims he is actually innocent of his
charges. “Actual innocence means factual innocence, not mere legal insufficiency.”
Bousley v. U.S., 523 U.S. 614 (1998). Here, Petitioner does not claim that he did not
commit the crime, only that this Court did not have jurisdiction over the crime
committed. Thus, Petitioner does not meet this burden and the Petition is time-barred.
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CONCLUSION
It is therefore ORDERED AND ADJUDGED that:
1.
1.
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (CV
Dkt. #1) is DENIED.
2.
The Clerk is to enter judgment for Respondent, United States of
America, terminate any pending motions, and close this case.
3.
The Clerk is directed to terminate from pending status the motion to
vacate found at Dkt.#133, in the underlying criminal case, case number 8:09-cr-223-T30EAJ.
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 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) (quoting Slack v. McDaniel, 529
U.S. 473, 484, (2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)
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(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). 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 Tampa, Florida on this 19th day of July, 2013.
Copies furnished to:
Counsel/Parties of Record
F:\Docs\2013\13-cv-23 deny 2255.docx
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