Cuero v. United States of America

Filing 4

ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255). Petitioner is neither entitled to a COA nor to proceed IFP on appeal. Signed by Judge James D. Whittemore on 5/29/2013. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BENITO MURILLO CUERO
Case No. 8:13-CV-1305-T-27TBM
Case No. 8:05-CR-365-T -27TBM

vs.
UNITED STATES OF AMERICA

----------------------------------------------------~'
ORDER
BEFORE THE COURT is Petitioner's prose "Motion to Dismiss Under That Congress
Lacks Constitutional Authority to reach Drug Crimes in Foreign Waters" (CV Dkt. 1; CRDkt. 5352), which is construed as a Section 2255 motion to vacate. The motion is DISMISSED as time
barred.
Because Petitioner's motion constitutes a collateral attack on his conviction and the proper
avenue of relief is under 28 U.S.C. § 2255, Petitioner was notified pursuant to Castro v. United

States, 540 U.S. 375 (2003) that his motion would be re-characterized as a motion to vacate under
28 U.S.C. § 2255, and that a subsequent Section 2255 motion would be subject to the restrictions
on second or successive motions (CR Dkt. 53 9). Petitioner was instructed that he could ( 1) withdraw
his motion, (2) file an amended motion, or (3) have the motion construed as a Section 2255 motion
as filed. Petitioner was further instructed that his motion would be construed as a Section 2255
motion if he did not respond to the Castro notice. Petitioner did not respond to the Castro notice. 1
Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings for the United States

1 Subsequent to the Castro notice, Petitioner filed a "Motion for Newly Discovered Evidence Under That
Congress Lacks Constitutional Authority to reach Drug crimes in Foreign Waters," in which he reasserts the same
contention he raises in his construed Section 225 5 motion (CR Dkt. 541 ). To the extent that motion seeks reconsideration
of the Order directing Petitioner to respond to the Castro notice (CR Dkt. 539), the motion is denied.

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District Courts (2005),2 the Court has undertaken a preliminary review of the construed Section
2255 motion and the prior proceedings in the underlying criminal case. The motion is due to be
summarily dismissed without an evidentiary hearing because it plainly appears from the face of the
motion and the prior criminal proceedings that Petitioner is not entitled to relief because the motion
is time-barred. Murphy v. United States, 634 F.3d 1303, 1306 n.8 (11th Cir. 2011). A response to
the motion is therefore unnecessary.
Procedural History

Petitioner pleaded guilty to possession with intent to distribute five or more kilograms of
cocaine while on board a vessel subject to the jurisdiction of the United States and conspiracy to
possess with intent to distribute five or more kilograms of cocaine while on board a vessel subject
to the jurisdiction of the United States (CR Dkt. 301 ). He was sentenced to concurrent terms of 144
months and an Amended Judgment was entered on November 1, 2006 (CR Dkt. 389). His
conviction was affirmed on appeal and the mandate was issued on November 15, 2007 (CR Dkt.
109). United States v. Mina, 255 Fed. Appx. 437 (11th Cir. 2007). 3 This is his first collateral attack
on his sentence and conviction.
Timeliness

Generally, a Section 2255 motion must be filed within one year of when a conviction
becomes final. 28 U.S.C. § 2255(f). When a direct appeal is filed, a conviction becomes fmal 90
days after the appellate mandate issues, unless a timely petition for certiorari review is filed with the

2 Rule 4(b) provides, in pertinent part, that "[t]he judge who receives the motion must promptly examine it. If
it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party."
3 Petitioner did not seek certiorari in the United States Supreme Court. Certiorari was denied as to his codefendants. Mina v. United States, 554 U.S. 905 (2008).

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United States Supreme Court. Ramirez v. United States, 146 Fed.Appx. 325, 326 (11th Cir. 2005).
Petitioner's appellate mandate issued on November 15, 2007 (Dkt. 501). His conviction therefore
became final on February 13, 2008, ninety days after the mandate issued, since he did not seek
certiorari review in the United States Supreme Court. Accordingly, he had one year from February
13,2008 within which to file a timely§ 2255 motion to vacate. The instant motion was filed more
than five years after his conviction became final. Accordingly, absent an exception to the one year
limitation period or a showing that the one year limitation period was triggered by a later date under
§ 2255(t)(2)-(4), the motion is time-barred.
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:
(1)

the date on which the judgment of conviction
becomes final;

(2)

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,
ifthe movant was prevented from making a motion by
such governmental action;

(3)

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

(4)

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(t)(l)-(4)).
To avoid the limitations bar, a Petitioner must show that he was prevented from filing a
timely motion because of extraordinary circumstances that were beyond his control and unavoidable

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even with diligence. Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). "The burden
of establishing entitlement to this extraordinary remedy plainly rests with the petitioner." Drew v.

Dep't ofCorr., 297 F.3d 1278, 1286 (11th Cir. 2002). In the Castro notice, Petitioner was directed
to show cause why his construed Section 2255 motion should not be dismissed as time barred (Dkt.
539, p. 3). As noted, Petitioner failed to respond to the Castro notice.
There is nothing in the record indicating that an impediment created by governmental action
prevented Petitioner from filing a timely § 2255 motion or that he could not have discovered the
facts supporting his claim through the exercise of due diligence. Rather, Petitioner's motion relies
solely on the recent opinion in Bellaizac-Hurtado in support of his claim that application of the
Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70503(a) and 70506 ("MDLEA") in his case
was unconstitutional.
Implicit in Petitioner's motion is a contention that Bellaizac-Hurtado constitutes a new legal
right and that the one year limitation period was extended under 28 U.S.C. §2255(f)(3). Such a
contention would be misplaced. Section 2255(f)(3) does not delay the start ofthe one year limitation
period because that section requires the recognition of a new right by the U.S. Supreme Court made
retroactive to cases on collateral review. Bellaizac-Hurtado is a circuit court decision.
Neither does Section 2255(f)(4) extend the limitation period. A judicial decision does not
constitute new factual information affecting a defendant's claim. See Madaio v. United States, 397
Fed. Appx. 568,570 (11th Cir. 2010) ("Since Section2255(f)(4) is predicated on the date that 'facts
supporting the claim' could have been discovered, the discovery of a new court legal opinion, as
opposed to new factual information affecting the claim, does not trigger the limitations period.").
To the extent Petitioner's motion challenges subject matter jurisdiction, the one year
limitation period would nonetheless bar his claim. Williams v. United States, 383 Fed.Appx. 927,

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929 (llthCir. 2010), cert. denied, 131 S.Ct. 846 (2010). 4 Whileaguiltypleadoesnotwaivesubject
matter jurisdiction and lack of subject matter jurisdiction may be challenged at any time, United

States v. Peter, 310 F.3d 709, 713 (lith Cir. 2002), there is no claim in Petitioner's motion that his
Indictment failed to charge an offense under the United States Code or that he was convicted of a
"non offense." See United States v. Mcintosh, 704 F.3d 894, 902 (11th Cir. 20 13) (where indictment
does not charge an offense under the United States Code, district court is deprived ofjurisdiction).
Rather, his motion raises an as applied challenge to the MDLEA. By pleading guilty, Petitioner
waived his "as applied" challenge to the constitutionality of the MDLEA, since such a challenge is
nonjurisdictional. United States v. Feaster, 394 Fed.Appx. 561, 564 (lith Cir. 2010), cert. denied,
131 S.Ct. 968 (2011). 5
Petitioner's conviction became final more than one year before he filed his§ 2255 motion
to vacate. None of the statutory exceptions which extend the one year limitation period apply. And
Petitioner makes no showing of equitable tolling. The motion is therefore time-barred.
The Merits
Even ifPetitioner' s claim is not time-barred, it is subject to summary dismissal on the merits.
In his motion, Petitioner raises a single claim in which he challenges the application of the MD LEA

4 There is authority that a challenge to the facial constitutionality ofthe MDLEA constitutes a jurisdictional
challenge which is not waived by a guilty plea. See United States v. Madera-Lopez, 190 Fed. Appx. 832, 834 (11th Cir.
2006). Notwithstanding, in this Circuit the MD LEA has consistently been upheld against constitutional challenges. See
United States v. Estupinan, 453 F.3d 1336, 1338-39 (11th Cir. 2006); UnitedStatesv. Tinoco, 304 F.3d 1088 (11th Cir.
2002), cert. denied, 538 U.S. 909 (2003); United States v. Rendon, 354 F.3d 1320, 1324-25 (11th Cir. 2003), cert.
denied, 541 U.S. 1035 (2004); United States v. Estupinan-Estupinan, 244 Fed.Appx. 308,309-10 (11th Cir. 2007).

Even if Petitioner's motion could be construed to include a claim of actual innocence, he fares no better.
Assuming that a showing of actual innocence constitutes an exception to the AEDPA's one year limitation period,
Petitioner makes no showing of actual innocence. "Actual innocence," for these purposes, means "factual innocence,"
as opposed to mere legal innocence. Bousley v. United States, 523 U.S. 614, 623 ( 1998); Rozzelle v. Sec y, Fla. Dept.
ofCorr., 672 F.3d 1000, 1013 (11th Cir. 2012). Petitioner's argument would necessarily be that his drug activities did
not constitute a crime because Congress did not have the authority to proscribe narcotic trafficking on the high seas. In
the context of a limitations discussion, this constitutes a claim of legal innocence as opposed to factual innocence.
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to his case. Relying on United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), he
contends that his conviction should be vacated for lack of subject matter jurisdiction, arguing that
the United States "has no jurisdiction to prosecute drug-trafficking activities occurring on other
nations [sic] territorial waters."
InBellaizac-Hurtado, the Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70503(a) and
70506 ("MDLEA") was found unconstitutional as applied to drug-trafficking activities "in the
territorial waters of Panama." Bellaizac-Hurtado at 1258 (emphasis added). The Court reasoned:
"Because 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." !d. (emphasis added). BellaizacHurtado is therefore limited to instances where a defendant is prosecuted under the MDLEA for drug
activities in a foreign country's territorial waters, as opposed to international waters.
Petitioner's reliance on Bellaizac-Hurtado is misplaced. Bellaizac-Hurtado is factually
distinguishable from Petitioner's case. The vessel on which Petitioner was found was interdicted
in international waters in the eastern Pacific Ocean, specifically "several hundred miles outside
Columbia's territorial waters and exclusive economic zone," traveling in a westerly direction (Dkt.
235, order denying motion to suppress). Accordingly, Bellaizac-Hurtado has no application to
Petitioner's case.
On appeal, the Eleventh Circuit confirmed that the district court had subject matter
jurisdiction over Petitioner's actions under the MDLEA. Indeed, the Court in Bellaizac-Hurtado
recognized that Eleventh Circuit precedent has upheld the constitutionality ofMDLEA prosecutions
involving "conduct on the high seas." Id at 1257; see United States v. Estupinan, 453 F.3d at 133839 (extraterritorial MDLEA prosecution of drug traffickers interdicted in international waters off
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Ecuador is constitutional exercise of authority pursuant to Piracies and Felonies Clause, which
"empowers Congress '[t]o define and punish Piracies and Felonies on the high Seas, and Offences
against the Law ofNations.' U.S. Const., art. I,§ 8, cl. 10."), cert. denied, 549 U.S. 1267 (2007)).
Petitioner's Motion to Dismiss (CR Dkt. 109) is therefore DISMISSED. The Clerk is
directed to 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
or to proceed in forma pauperis on appeal. There is no absolute right to appeal in this instance. A
certificate of appealability must be issued upon a substantial showing ofthe denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). 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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Petitioner has
not made the required showing.
DONE AND ORDERED

this~lay of May, 2013.

Copies to:
Petitioner, pro se
Counsel of Record

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