Orozco v. USA

Filing 2

ORDER dismissing as time-barred 1 --motion to vacate sentence (2255); denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the Clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 5/23/2013. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
v.

CASE NO. 8:11-cr-363-T-23TBM
8:13-cv-983-T-23TBM

HUGO ANGULO OROZCO
/

ORDER
Orozco’s motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges the
validity of his conviction for conspiring to possess with the intent to distribute
cocaine while aboard a vessel, for which offense he was sentenced to 97 months.
The motion is time-barred and lacks merit.
Rule 4, Rules Governing Section 2255 Cases, requires both a preliminary
review of the motion to vacate and a summary dismissal “[i]f it plainly appears from
the face of the motion, any attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief . . . .” Accord Wright v. United States, 624 F.2d
557, 558 (5th Cir. 1980)* (finding the summary dismissal of a Section 2255 motion
was proper “[b]ecause in this case the record, uncontradicted by [defendant], shows

Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued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).
*

that he is not entitled to relief”); Hart v. United 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 Anti-Terrorism and Effective Death Penalty Act creates 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 . . . the date on which the
judgment of conviction becomes final . . . .” 28 U.S.C. § 2255(f)(1). Because his
conviction was final in December, 2011, Orozco’s limitation expired one year later,
in December, 2012. In February, 2013, Orozco moved to dismiss (Doc. 187) in his
underlying criminal case. Orozco was advised (Doc. 189) that his motion must
proceed as a motion to vacate under Section 2255. As a consequence, Orozco moved
under Section 2255 in April, 2013. Consequently, Orozco’s motion to vacate is timebarred under Section 2255(f)(1), even based on the date of the motion to dismiss in
the criminal case.
Orozco is not entitled to a delayed start of the limitation under Section
2255(f)(3), which provides for beginning the limitation on “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 . . . .” Orozco asserts entitlement to relief under United States v.
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Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012). Although Orozco moved to vacate
within one year, Hurtado affords Orozco no relief. A delayed start of the limitation
under Section 2255(f)(3) requires the recognition of a new right by the Supreme
Court. Hurtado is a circuit court decision, not a Supreme Court decision. As a
consequence, Orozco cannot benefit from Hurtado under Section 2255(f)(3)’s
provision for a delayed start of the limitation.
Orozco asserts timeliness under Section 2255(f)(4), which commences the
limitation from “the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.” Orozco alleges
that in January, 2013, he learned that he was captured “on the territorial sea of a
foreign county.” Orozco admitted to his location in the Carribean Sea when he
pleaded guilty. Orozco’s “discovery” in January, 2013, is that Hurtado draws a
distinction between territorial water and international water. “International water” is
all area beyond twelve miles from land. United States v. McPhee, 336 F.3d 1269, 1273
(11th Cir. 2003). In his plea agreement, Orozco admitted that his vessel was
“approximately forty (40) nautical miles northeast of the Panamanian coast in
international waters of the Caribbean Sea.” Doc. 56 at 12, 8:11-cr-363-T-23TBM
Consequently, Orozco did not recently discover a new fact.
Orozco asserts entitlement to equitable tolling because “it will clearly be
inappropriate to imprison Petitioner under an offense that Congress did not have the
power to enact, and this Honorable Court lacked the required subject-matter
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jurisdiction to adjudicate the case.” (Doc. 1 at 2) This argument depends on the
applicability of Hurtado, which is factually distinguishable. Orozco was convicted of
violating the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C.
§ 70503(a), et. seq., which is based on the constitutional authority granted to Congress
“[t]o define and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations.” U.S. Const., Art. I, § 8, cl. 10. Hurtado, 700
F.3d at 1248-49, explains the breadth of jurisdiction under the MDLEA.
The Supreme Court has interpreted that Clause to contain three
distinct grants of power: the power to define and punish piracies,
the power to define and punish felonies committed on the high seas,
and the power to define and punish offenses against the law of
nations. See United States v. Smith, 18 U.S. (5 Wheat.) 153, 158–59, 5
L. Ed. 57 (1820). The first two grants of power are not implicated
here: piracy is, by definition, robbery on the high seas, United States
v. Furlong, 18 U.S. (5 Wheat.) 184, 198, 5 L. Ed. 64 (1820), and the
Felonies Clause is textually limited to conduct on the high seas, see
U.S. Const., Art. I, § 8, cl. 10. The United States relies instead on
the third grant—the Offences Clause—as the source of congressional
power to proscribe the defendants’ drug trafficking in the territorial
waters of Panama. The question whether Congress has the power
under the Offences Clause to proscribe drug trafficking in the
territorial waters of another nation is an issue of first impression in
our Court.

Hurtado rejects the argument that the “Offences Clause” supports the MDLEA
for drug activities that occur within a foreign country’s territorial water. “Because
drug trafficking is not a violation of customary international law, we hold that
Congress exceeded its power, under the Offences Clause, when it proscribed the
defendants’ conduct in the territorial waters of Panama.” 700 F.3d at 1258. Hurtado
is inapplicable to Orozco because his vessel was in international water. Orozco
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argues that, based on the “Third United Nations Convention on the Law of the Seas”
(“UNCLOS”), territorial water extends “200 miles seaward.” International
economic limits establish no limit on a country enforcing its laws upon a stateless
vessel. Contrary to Orozco’s argument, the UNCLOS recognizes the twelve mile
limit for enforcing laws. “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.” UNCLOS, Part II § 2, Art. 3.
Hurtado is inapplicable and Orozco is not entitled to a delayed start of the limitation
because Orozco was forty miles asea from Panama and, as a consequence, not within
a country’s territorial water.
Accordingly, the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is
DISMISSED as time-barred and Orozco is not entitled to a delayed start of the
limitation under Hurtado. The clerk shall close this case.

DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Orozco is not entitled to a certificate of appealability (“COA”). 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 COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” To merit a COA, Orozco
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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 motion to vacate is clearly time-barred and he
is not entitled to a delayed start of the limitation, Orozco cannot meet Slack’s
prejudice requirement. 529 U.S. at 484. Finally, Orozco is not entitled to appeal in
forma pauperis because he is not entitled to a COA.
Accordingly, a certificate of appealability is DENIED. Leave to proceed in
forma pauperis on appeal is DENIED. Orozco must pay the full $455 appellate filing
fee without installments unless the circuit court allows Orozco to proceed in forma
pauperis.
ORDERED in Tampa, Florida, on May 23, 2013.

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