Cruz v. USA

Filing 2

ORDER Denying Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In A Federal Custody re 1 . Signed by JUDGE J. MICHAEL SEABRIGHT on 11/13/12. (gls, )CERTIFICATE OF SERVICEPart icipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

HECTOR CRUZ,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
)
_______________________________ )

Civ. No. 12-00485 JMS/KSC
(Cr. No. 07-00268-03 JMS)
ORDER DENYING MOTION UNDER
28 U.S.C. § 2255 TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
BY A PERSON IN A FEDERAL
CUSTODY

ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET
ASIDE, OR CORRECT SENTENCE BY A PERSON IN A FEDERAL
CUSTODY
I. INTRODUCTION
On August 15, 2012, Petitioner Hector Cruz (“Cruz”) filed a Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in a
Federal Custody (the “Petition”).1 Doc. No. 754 (Cr. No. 07-00268-03). The
Petition arises from Cruz’s May 14, 2008 guilty plea to charges involving a drug

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The Petition was filed in this court on August 23, 2012. Records indicate, however,
that it was mailed on August 20, 2012 from Cruz’s place of incarceration, Doc. No. 754-1
(envelope), and the Petition is dated August 15, 2012. See Doc. No. 754 at 13. Thus, construing
the documents in favor of Cruz for present purposes, the court will treat the Petition as having
been filed on August 15, 2012. See, e.g., United States v. Garcia, 210 F.3d 1058, 1061 n.5 (9th
Cir. 2000) (applying the “mailbox rule,” which deems a prisoner’s petition filed when he hands
it to the prison authorities, and assuming the petition was filed when dated) (citing Houston v.
Lack, 487 U.S. 266 (1988)).

distribution conspiracy, and his subsequent July 28, 2009 sentence. After Cruz
filed this Petition, the court issued an Order to Show Cause Why the Petition
Should Not Be Dismissed (“OSC”), given that the Petition was filed nearly one
year past the deadline for such a Petition. See Doc. No. 755. The court allowed
Cruz until October 23, 2012 to file a response. Id. at 5. The court later extended
the time to respond to the OSC until November 6, 2012. No response was filed.2
Because it is undisputed that this Petition is time-barred, and there are
no circumstances indicating the possible applicability of equitable tolling, the
Petition is DENIED.
II. DISCUSSION
On July 28, 2009, the court sentenced Cruz to 174 months
incarceration, and judgment was entered on July 29, 2009. On August 7, 2009,
Cruz filed a Notice of Appeal. On July 2, 2010, the appeal was dismissed by the
Ninth Circuit Court of Appeals. The time to petition to the U.S. Supreme Court for

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On September 21, 2012, Cruz filed a Motion to Appoint Counsel, Doc. No. 757, which
the court denied on September 27, 2012. Doc. No. 758. The Motion sought counsel for this
Petition (and apparently to respond to the OSC), and also reacted to the OSC by stating the OSC
was “refused for fraud.” Doc. No. 757 at 1. In its Order Denying Motion for Appointment of
Counsel, the court extended the time to respond to the OSC to November 6, 2012. Doc. No. 758
at 5. Meanwhile, Cruz appealed the Order Denying Motion for Appointment of Counsel to the
Ninth Circuit Court of Appeals, but the Ninth Circuit dismissed that appeal for lack of
jurisdiction on November 6, 2012. See Ninth Cir. App. No. 12-17284, Doc. No. 3. As of
November 12, 2012, Cruz has not filed any response to the OSC, despite the deadline having
passed on November 6, 2012.
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writ of certiorari expired on or about September 30, 2010. Cruz did not file this
Petition until August 15, 2012 -- almost two years after that time expired.
A one-year statute of limitations applies to § 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, 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. § 2255(f).
The Petition is not timely under § 2255(f)(1). In this instance, “a
judgment of conviction becomes final when the time expires for filing a petition
for certiorari contesting the appellate court’s affirmation of the conviction.” Clay
v. United States, 537 U.S. 522, 525 (2003). The Ninth Circuit dismissed Cruz’s
appeal on July 2, 2010 (although the mandate issued on July 26, 2010). Cruz did
not file a petition for writ of certiorari. Thus, the conviction became final ninety
days after July 2, 2010. See id. at 527 (reasoning that “[t]he time to file a petition
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for a writ of certiorari runs from the date of entry of the judgment or order sought
to be reviewed, and not from the issuance date of the mandate (or its equivalent
under local practice)”) (quoting Supreme Court Rule 13(3)). That is, Cruz’s
conviction became final on September 30, 2010, which is ninety calendar days
after July 2, 2010. Therefore, Cruz had one year from that date to file the Petition.
Cruz filed his Petition on August 15, 2012 -- almost a year late given the one-year
deadline outlined in § 2255(f)(1).
Sections 2255(f)(2) and (f)(3) also do not provide Cruz any relief
from the conclusion that his Petition is untimely -- Cruz is not asserting that a
governmental impediment prevented him from bringing this action, and he points
to no Supreme Court decision newly recognizing rights asserted in the Petition.
Based on what is provided in the Petition, § 2255(f)(4) also does not
apply. Section 2255(f)(4) tolls the statute of imitations until the date on which the
facts supporting the claim or claims could have been discovered through the
exercise of reasonable diligence. This provision “does not require the maximum
feasible diligence, only due, or reasonable, diligence.” Anjulo-Lopez v. United
States, 541 F.3d 814, 818 (8th Cir. 2008) (quoting Wims v. United States, 225 F.3d
186, n.4 (2d Cir. 2000)). In other words, reasonable diligence “does not require a
prisoner to undertake repeated exercises in futility or to exhaust every imaginable
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option.” Id. (quoting Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002)).
Rather, a prisoner must “make reasonable efforts to discover the facts supporting
his claims.” Id.
A document Cruz attached to the Petition indicates that Cruz
attempted to obtain his legal files from his prior attorney so that he could file a
habeas corpus petition. See Doc. No. 754 at 15 (letter of November 8, 2011). That
document -- construed liberally in favor of Cruz -- makes apparent reference to a
prior “mailing” of September 28, 2011 (only a day or two prior to expiration of the
time to file a motion under § 2255). Id. Although tolling is allowed in some
circumstances when a prisoner has been denied access to legal files from his
counsel, see, e.g., Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003), the prisoner
must still act with reasonable diligence. Here, Cruz’s letter of November 8, 2011
does not indicate that he was reasonably diligent in seeking to obtain his files from
his attorney -- at best, he waited nearly an entire year to even attempt to contact his
attorney on September 28, 2011. This falls “far short of reasonable diligence” and
cuts against § 2255’s clear policy of promptness in filing petitions. See AnjuloLopez, 541 F.3d at 819. Even if Cruz’s former attorney would have provided Cruz
his legal files after receiving a September 28, 2011 “mailing,” Cruz would not have
been able to file his Petition before the September 30, 2011 deadline. That is, even
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assuming Cruz attempted to obtain his legal files from his former counsel, he did
not act with reasonable diligence in doing so. See id.
Similarly, the Petition does not indicate any circumstances that would
entitle Cruz to equitable tolling. “Equitable tolling is applicable only if
extraordinary circumstances beyond a prisoner’s control make it impossible to file
a petition on time [and those] extraordinary circumstances [are] the cause of [the]
untimeliness.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (internal
quotation signals and citation omitted). “A litigant seeking equitable tolling . . .
bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Finally, the court allowed Cruz an opportunity show cause why this
Petition should not be denied, and to explain any circumstances that might justify
the court considering this late Petition, and Cruz did not respond. See Doc. Nos.
755 (OSC issued on September 12, 2012) and 758 (Order extending time to file
response to OSC to November 6, 2012). The court warned Cruz that failure to
respond to the OSC would result in dismissal of the Petition as untimely. See Doc.
No. 755 at 6.

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III. CONCLUSION
For the foregoing reasons, the court DENIES the Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in a Federal
Custody. Doc. No. 754. The Clerk of Court shall close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 13, 2012.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Cruz v. United States, Civ. No. 12-00485 JMS/KSC, Cr. No. 07-00268-03 JMS, Order Denying
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in a
Federal Custody Should Not Be Dismissed

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