Orjuela-Medina v. USA

Filing 5

ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to close this case. Signed by Judge Susan C Bucklew on 2/14/2013. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HENRY ORJUELA-MEDINA
Case No. 8:05-cr-381-T-24 MAP
8:13-cv-378-T-24 MAP
v.
Related Cases:
8:06-cv-2207-T-24 MSS
8:07-cv-1840-T-24 MSS

UNITED STATES OF AMERICA
/
ORDER

This cause comes before the Court on Petitioner’s motion to vacate, set aside, or correct
an allegedly illegal sentence pursuant to 28 U.S.C. § 2255. (CV Doc. No. 1; CR Doc. No. 176).
Because review of the motion and the file in the case conclusively show that Petitioner is not
entitled to relief, the Court will not cause notice thereof to be served upon the United States
Attorney but shall proceed to address the matter. 28 U.S.C. § 2255(b).
I. Background
On October 27, 2005, Petitioner pled guilty, pursuant to a plea agreement, to Count One
of the Indictment, which charged him with conspiracy to possess with intent to distribute five
kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United
States. (CR Doc. No. 25, 39). Petitioner did not contest the factual basis contained in the plea
agreement, which included the following:
On or about August 28. 2005, the defendant and three other crew
members were aboard the Colombian registered fishing vessel Mar
Picao when intercepted by the United States Coast Guard in the
Carribean Sea. . . . During the encounter the Coast Guard seized
approximately 350 kilograms of cocaine from the vessel.
(CR Doc. No. 25, p. 12).

Petitioner was sentenced on January 27, 2006 to 121 months of imprisonment, and the
judgment was entered against Petitioner the same day. (CR Doc. No. 71, 74). Petitioner did not
appeal his conviction. Instead, he filed his first § 2255 motion in November of 2006, which this
Court denied. (CR Doc. No. 137, 139). Thereafter, he filed a second § 2255 motion in October
of 2007, which this Court denied because it was an unauthorized successive § 2255 motion. (CR
Doc. No. 148, 149). Currently pending before the Court is Petitioner’s third § 2255 motion,
which was filed in February of 2013. (CR Doc. No. 176, CV Doc. No. 1).
II. Section 2255 Motion
Petitioner argues in the instant § 2255 motion that his conviction should be vacated,
because the Maritime Drug Law Enforcement Act is unconstitutional as applied to him. In
support of this contention, Petitioner cites the Eleventh Circuit’s opinion in United States v.
Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012). However, because his motion is untimely,
successive, and lacks merit, it must be denied.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “established a
mandatory, one-year ‘period of limitation’ for § 2255 motions, which runs from the latest of the
following events:
(1)
(2)

(3)

(4)

the date on which the judgment of conviction becomes final;
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;
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 on collateral review; or
the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.

Jones v. United States, 304 F.3d 1035, 1037-38 (11th Cir. 2002) (citing 28 U.S.C. § 2255(f)(1)2

(4)).
Petitioner was sentenced and judgment was entered on January 27, 2006. Petitioner did
not appeal his conviction, and as such, his conviction became final when the time for filing an
appeal expired. Therefore, his conviction became final on February 10, 2006.
Pursuant to 28 U.S.C. § 2255(f)(1), Petitioner had one year from February 10, 2006
within which to file his § 2255 motion. Petitioner’s § 2255 motion was not filed until February
of 2013. As such, Petitioner’s motion is time-barred unless Petitioner can show that he is
entitled to a later filing date pursuant to 28 U.S.C. § 2255(f)(2) - (4). To the extent that
Petitioner relies on the Eleventh Circuit’s November 6, 2012 opinion in United States v.
Bellaizac-Hurtado to restart the one-year limitations period, such an argument is rejected.
Because the Bellaizac-Hurtado opinion is an opinion of the Eleventh Circuit, and not an opinion
of the Supreme Court, it cannot serve as a basis to restart the one-year limitations period. See
Vargas v. U.S., 2013 WL 424362, at *1 (M.D. Fla. Feb. 4, 2013).
Even if Petitioner’s motion was timely, it would still be denied as successive, as this is
the third § 2255 motion that Petitioner has filed. Pursuant to 28 U.S.C. § 2255(h), a successive
§ 2255 motion must be certified by a panel of the Eleventh Circuit prior to being filed in this
Court. No such certification was obtained in this case.
Finally, even if Petitioner’s motion was timely and was not successive, it would still be
denied on the merits, because Petitioner’s reliance on Bellaizac-Hurtado is misplaced. In that
case, a panel of the Eleventh Circuit ruled, in an unpublished opinion, that the Maritime Drug
Law Enforcement Act, 46 U.S.C. §§ 70503(a) and 70506, was unconstitutional as applied to the
drug-trafficking activities of the defendants in that case, which occurred in the territorial waters

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of Panama. See Bellaizac-Hurtado, 700 F.3d at 1258. The panel reasoned, “[b]ecause drug
trafficking is not a violation of customary international law, . . . Congress exceeded its power,
under the Offences Clause [of the U.S. Constitution] when it proscribed the defendants’ [drug
trafficking] conduct in the territorial waters of Panama.” Id.
In his § 2255 motion, Petitioner admits that he was in international waters when he states
that he was detained “approximately 150 nautical miles South of Jamaica, in International
waters, in Caribbean Sea.” (CV Doc. 1, CR Doc. No. 176). Bellaizac-Hurtado is factually
distinguishable from the instant case because it concerns Congress’s ability to proscribe drugtrafficking activity in territorial waters, particularly the territorial waters of Panama, In addition,
as explained by the Eleventh Circuit, the United States generally recognizes the territorial waters
of foreign nations up to twelve nautical miles adjacent to their coasts:
In United States v. Marino–Garcia, we concluded that “international
law permits any nation to subject stateless vessels on the high seas to
its jurisdiction,” and, consequently, that “all persons aboard vessels
engaged in drug trafficking that [fail] to unmistakably accede to the
authority of a single sovereign while traversing the high seas [are]
subject to the criminal jurisdiction of the United States.” 679 F.2d
1373, 1383–84 (11th Cir.1982); see also 33 C.F.R. § 2.05–1 (defining
“high seas” (with exceptions not relevant here) as “all waters which
are neither territorial seas nor internal waters of the United States or
of any foreign country”); 33 C.F.R. § 2.05–5(b) (defining “territorial
seas” of foreign countries as “waters within the belt that is adjacent
to its coast and whose breadth and baseline are recognized by the
United States”). The United States generally recognizes the territorial
seas of foreign nations up to twelve nautical miles adjacent to
recognized foreign coasts. See United States: Proclamation on an
Exclusive Economic Zone, 22 I.L.M. 461, 462 (March 10, 1983)
(“The United States will respect only those territorial sea claims of
others in excess of 3 nautical miles, to a maximum of 12 nautical
miles, which accord to the U.S. its full rights under international law
in the territorial sea.”); United States Ocean Policy, Statement by
President Reagan, 22 I.L.M. 464, 464 (March 10, 1983) (“[T]he
United States will recognize the rights of other states in the waters off
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their coasts, as reflected in the [United Nations Convention on the
Law of the Sea], so long as the rights and freedoms of the United
States and others under international law are recognized by such
coastal states.”); see also United Nations Convention on the Law of
the Sea, Dec. 10, 1982, 21 I.L.M. 1245, 1272, Part II § 2, Art. 3
(“Every State has the right to establish the breadth of its territorial sea
up to a limit not exceeding 12 nautical miles, measured from
baselines determined in accordance with this Convention.”).
U.S. v. McPhee, 336 F.3d 1269, 1273 (11th Cir. 2003)(footnotes omitted). Therefore if
Petitioner was 150 nautical miles south of Jamaica, he was not in territorial seas but in
international waters.
III. Conclusion
Bellaizac-Hurtado is factually distinguishable and does not support Petitioner’s argument
that his conviction should be vacated. Petitioner’s motion is untimely and successive.
Accordingly, Petitioner’s motion to vacate sentence is DISMISSED as untimely and successive.
The Clerk is directed to close the civil case.

CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHERED ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a
district court's denial of his motion. 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
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presented were ‘adequate to deserve encouragement to proceed further,’” Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003) (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, this 14th day of February, 2013.

Copies to:
Counsel of Record
Pro Se Petitioner

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