Trivino v. United States of America

Filing 2

ORDER dismissing as time-barred 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to terminate from pending status the motion to vacate found at Doc. 178 in the underlying criminal case, case number 8:14-cr-518-T-30TBM. The Clerk is directed to terminate any pending motions and close this case. Signed by Judge James S. Moody, Jr on 10/11/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ALEXIS SALAZAR TRIVINO,
Petitioner,
v.

Case No: 8:16-cv-2754-T-30TBM
Crim. No: 8:14-cr-518-T-30TBM

UNITED STATES OF AMERICA,
Respondent.
________________________________/

ORDER
THIS CAUSE comes before the Court upon Petitioner Alexis Salazar Trivino’s
Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 filed on
September 26, 2016. (CV Doc. 1). Upon preliminary review of the motion, the Court
concludes that Petitioner’s motion should be dismissed as time-barred.
BACKGROUND
Pursuant to a written plea agreement, Petitioner pled guilty to conspiracy to possess
with intent to distribute, and to distribute, five kilograms or more of cocaine while aboard
a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§
70503(a); 70506(a) and (b); and 21 U.S.C. § 960(b)(1)(B)(ii). (CR Docs. 58, 74, 156). On
August 11, 2015, the Court sentenced Petitioner to 135 months’ imprisonment and 5 years’
supervised release. (CR Doc. 156). Petitioner did not file a direct appeal.

Because Petitioner did not file a direct appeal, her judgment of conviction became
final under § 2255(f)(1) when the time for filing a direct appeal expired on August 25,
2015. See Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011) (stating that
“when a defendant does not appeal his [or her] conviction or sentence, the judgment of
conviction becomes final when the time for seeking that review expires”); Fed R. App. P.
4(b)(1)(A)(i) (allowing a criminal defendant fourteen days after the entry of either the
judgment or the order being appealed to file a notice of appeal). Petitioner therefore had
until August 25, 2016, to file a motion under § 2255.
Petitioner filed the present motion on September 26, 2016, over a month after his
time for filing a motion under § 2255(f)(1) expired. (CV Doc. 1). Petitioner raises one
ground for relief, seeking a reduction of his sentence under an amendment to United States
Sentencing Guideline § 3B1.2.
DISCUSSION
Under § 2255(f)(1), Petitioner’s claim is untimely because he filed his motion more
than a year after his judgment of conviction became final. Petitioner asserts that his motion
should be considered timely under § 2255(f)(4) because of a recent amendment to U.S.S.G.
§ 3B1.2. (CV Doc. 1 at 4). Specifically, on April 30, 2015, the United States Sentencing
Commission amended U.S.S.G. § 3B1.2, with the amendment effective as of November 1,
2015, to provide guidance in determining whether a mitigating role adjustment applies.
Petitioner argues the § 3B1.2 amendment renders his motion timely under §
2255(f)(4) because the motion was filed within 1 year of the amendment. Section
2255(f)(4) provides as follows:
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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 facts
supporting the claim or claims presented could have been discovered through
the exercise of due diligence.
However, the amendment to § 3B1.2 is not a fact discovered through due diligence, and,
therefore, does not fall within § 2255(f)(4). As such, Petitioner’s motion is untimely.
For Petitioner’s benefit, even if his motion were not time-barred, he would not be
entitled to relief. The amendment to § 3B1.2 was a clarifying amendment, not a substantive
amendment. Generally, clarifying amendments to the sentencing guidelines are not
cognizable on a § 2255 motion absent a complete miscarriage of justice. See Burke v.
United States, 152 F.3d 1329, 1332 (11th Cir. 1998). Petitioner has not demonstrated a
complete miscarriage of justice.
CONCLUSION
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1.

Petitioner Alexis Salazar Trivino’s Motion to Vacate, Set Aside or Correct

Sentence under 28 U.S.C. § 2255 (CV Doc. 1) is DISMISSED as time-barred.
2.

The Clerk is directed to terminate from pending status the motion to vacate

found at Doc. 178 in the underlying criminal case, case number 8:14-cr-518-T-30TBM.
3.

The Clerk is directed to terminate any pending motions and 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
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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, 336 (2003)
(internal quotation marks omitted). 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 11th day of October, 2016.

Copies furnished to:
Counsel/Parties of Record

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