Castillo v. United States of America

Filing 11

ORDER Dismissing Petition to Vacate Sentence: Accordingly, because the Court finds Castillo's motion time barred, it dismisses his petition (ECF No. 1) as untimely under § 2255(f). The Court declines to issue a certificate of appealability. The Court directs the Clerk to close this case. Any other pending motions are denied as moot. Closing Case. Signed by Senior Judge Robert N. Scola, Jr on 2/7/2024. See attached document for full details. (scn)

United States District Court
for the
Southern District of Florida
Fermin A. Castillo, Petitioner,
v.
United States Of America,
Respondent.

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Civil Action No. 23-62045-Civ-Scola
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Order Dismissing Petition to Vacate Sentence
Petitioner Fermin A. Castillo has filed a motion to withdraw his guilty
plea and vacate his conviction under 28 U.S.C. § 2255. (ECF No. 1.)
Represented by counsel, Castillo’s challenge is two-fold: he claims he was
denied effective assistance of counsel and says that, as a result, his guilty plea
was not made knowingly and voluntarily. (Pet’r’s Mot., ECF No. 1.) Accordingly,
he asks the Court to set aside his 2012 conviction. (Id.) The Government has
answered (Gov’t’s Resp., ECF No. 10) 1 but Castillo did not respond to that
answer and the time to do has passed. Castillo’s motion is thus ripe for the
Court’s review. After considering the briefing, the record, and the relevant legal
authorities, the Court dismisses Castillo’s petition (ECF No. 1) as time barred.
By way of background, Castillo’s petition relates to a March 2012
indictment, in Criminal Case No. 12-cr-60071-RNS, in the Southern District of
Florida, charging him with conspiracy to possess and attempted possession
with intent to distribute five kilograms or more of cocaine in violation of 21
U.S.C. § 846. Indictment, United States v. Castillo, 12-cr-60071-RNS (S.D. Fla.
Mar. 22, 2012), ECF No. 16. Some six months later, in September, Castillo
pleaded guilty to the conspiracy count (count one), as set forth in a written plea
agreement and factual proffer and during a colloquy with the Court. (Id. at ECF
Nos. 48, 49, 50, 78.) The plea agreement contained a waiver of Castillo’s right
to appeal his sentence (unless the Court sentenced him in excess of the
statutory maximum or varied above the guidelines, neither of which occurred).
(Id. at ECF No. 48, Plea Agmt.) In December 2012 the Court sentenced Castillo
to forty-two months’ imprisonment, followed by two years’ supervised release.
(Id. at ECF No. 68, J.) The Court terminated Castillo’s supervised release early,
on February 3, 2016. (Id. at ECF No. 116.)
1 Although the Government failed to supply any real justification for missing its
unambiguous answer deadline, Castillo did not object to the untimeliness.
Accordingly, the Court discharges its order to show cause (ECF No. 9) and will address
the substance of Castillo’s motion.

As an initial matter, because it did not appear, from this background,
that Castillo was “in custody” under the conviction he seeks to vacate, the
Court raised a concern about its jurisdiction to hear this case. In support of its
concern, the Court pointed to § 2255(a)’s requirement that the petitioner be “in
custody under sentence of a court established by Act of Congress claiming the
right to be released upon the ground that the sentence was imposed in
violation of the Constitution.” 28 U.S.C. § 2255(a) (emphasis added). The Court
also identified the United States Supreme Court’s conclusion that a habeas
petitioner does not remain “in custody” under a conviction “after the sentence
imposed for it has fully expired, merely because of the possibility that the prior
conviction will be used to enhance the sentences imposed for any subsequent
crimes of which he is convicted.” Maleng v. Cook, 490 U.S. 488, 492 (1989).
In response to the Court’s concern, Castillo insists he meets the “in
custody” requirement for three reasons: (1) he is currently in custody in
Massachusetts, awaiting sentencing in another case for which he says he
“faces a mandatory 5 year consecutive sentence on top of the ten year
mandatory sentence to be imposed”; (2) based on his conviction in the 2012
case, “he cannot engage in certain businesses; he cannot hold public office; he
cannot vote in any election; and he cannot service as a juror”; and (3) his §
2255 petition “is equivalent to a Motion for a New Trial based on newly
discovered evidence under Rule 33” and should be deemed timely under
Federal Rule of Criminal Procedure 45(b)(1)(B). (Pet’r’s Resp., ECF No. 5, 1–2.)
Castillo’s second and third points are thoroughly meritless. The collateral
consequences Castillo identifies in his second point go to mootness; not
“whether the statute defining the habeas corpus jurisdiction of the federal
judiciary in respect of persons in state custody is available.” Carafas v.
LaVallee, 391 U.S. 234, 238 (1968). And Castillo fails to supply any real
support—either factual or legal—for his contention that either his § 2255
petition should be construed as a Rule 33 motion for a new trial or, even if the
Court did so construe it, that he is at all entitled to a new trial.
As to his first argument, however, Castillo maintains that whether his
2012 conviction will be used to enhance his sentence is not just a “possibility,”
but, rather is a foregone conclusion based on both his conviction and the
government’s notice seeking the 21 U.S.C. § 851 enhancement. The
Government appears to concede the point, inexplicably failing to address, or,
even mention, the Court’s jurisdictional concerns at all. Accordingly, the Court
deems the Government’s position to be that a petitioner seeking habeas relief
as to an expired sentence satisfies § 2255’s “in custody” requirement where he
has been convicted of another crime, is in custody awaiting sentencing on that
new crime, and the Government has filed a notice seeking enhancement based

on the challenged conviction. Assuming, then, that the parties are correct and
jurisdiction under § 2255 has been established, the Court turns to Castillo’s
petition.
As the Government points out, Castillo’s petition is untimely. Under §
2255, the applicable one-year limitations period begins to run 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, if the 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 to cases 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.
28 U.S.C.A. § 2255(f)(1)–(4). Ordinarily, then, the one-year limitations period
begins to run on the date on which a judgment of conviction becomes final. In
this case, since the Court entered judgment on December 14, 2012, and no
appeal followed, Castillo’s conviction became final on December 28, 2012. See
Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir. 2000) (judgment of
conviction final on expiration of deadline for filing notice of appeal); Fed. R.
App. P. 4(b)(1)(A)(i) (defendants must notice their appeals within fourteen days
from the entry of judgment). Castillo maintains, however, that since he “did not
become aware of the federal sentencing enhancements under 21 U.S.C. § 851
until he was convicted in federal court in Massachusetts in 2023,” section (f)(4)
applies. (Pet’r’s Mot. at 4.) That is, Castillo says, the limitations period did not
begin to run until his most recent conviction triggered the applicability of the
enhancement. According to Castillo, this development amounts to “newly
discovered facts” rendering his petition timely. Castillo’s argument falls far wide
of the mark.
First, Castillo’s conviction for his most recent drug offense, triggering the
potential application of the sentencing enhancement, is not a fact that
supports his ineffective-assistance-of-counsel or involuntary-plea claims in the
2012 case. Instead, all the facts supporting Castillo’s claims were readily
discoverable the moment his 2012 judgment became final. Nothing prevented
Castillo from challenging his 2012 conviction on the bases he now identifies

within the limitations period. And second, Castillo makes no attempt to explain
why he could not have immediately discovered, “through the exercise of due
diligence,” that his attorney “failed to explain . . . the full consequences of
pleading guilty,” “including the risk of increased punishment,” as he claims,
until he was convicted of another crime. In other words, Castillo has failed to
set forth any allegations from which the Court could infer that he made
“reasonable efforts to discover the factual predicate of his claim.” Lanier v.
United States, 769 F. App’x 847, 849 (11th Cir. 2019) (quoting Aron v. United
States, 291 F.3d 708, 712 (11th Cir. 2002)); see also Rivers v. United States,
416 F.3d 1319, 1323 (11th Cir. 2005) (pointing out that neither “lack of
education” nor “procedural ignorance” are accepted as excuses “for prolonged
inattention when a statute’s clear policy calls for promptness”).
Based on this lack of diligence, the Court also readily finds any
application of equitable tolling unwarranted. A petitioner may be afforded
equitable tolling of the § 2255 limitations period “where the movant untimely
files because of extraordinary circumstances that are both beyond his control
and unavoidable even with diligence.” Lanier, 769 F. App’x at 850 (cleaned up).
Not only has Castillo failed to demonstrate that he has been pursuing his
rights diligently, he has also failed to even mention, never mind establish, “that
some extraordinary circumstance stood in his way and prevented timely filing.”
Id.
Accordingly, because the Court finds Castillo’s motion time barred, it
dismisses his petition (ECF No. 1) as untimely under § 2255(f). The Court
declines to issue a certificate of appealability. The Court directs the Clerk to
close this case. Any other pending motions are denied as moot.
Done and ordered, in Miami, Florida, on February 7, 2024.
_______________________________
Robert N. Scola, Jr.
United States District Judge