Jauregui v. USA

Filing 2

ORDER: 1) Denying Motion Under 28 U.S.C. 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody; And 2) Denying Certificate of Appealability re 1 as to Elias Jauregui. Signed by JUDGE J. MICHAEL SEABRIGHT on 2/7/13. (gls, ) CERTIFICATE OF SERVICEParticipants 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

ELIAS JAUREGUI,

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

Civ. No. 12-00665 JMS-RLP
Cr. No. 05-00190-04 JMS
ORDER: 1) DENYING MOTION
UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN
FEDERAL CUSTODY; AND
2) DENYING CERTIFICATE OF
APPEALABILITY

ORDER: 1) DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY; AND 2) DENYING CERTIFICATE OF APPEALABILITY
I. INTRODUCTION
Petitioner Elias Jauregui (“Jauregui”) has 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”). Because the Petition is time-barred, it is DENIED.
Further, because the Petition is so clearly time-barred, the court declines to enter a
certificate of appealability.
II. BACKGROUND
The Petition arises from Jauregui’s January 4, 2007 guilty plea to two
Counts of a Second Superseding Indictment involving a drug distribution

conspiracy. Doc. No. 252 (Cr. No. 05-00190-04 JMS). On July 12, 2007, the
court sentenced Jauregui to 240-months incarceration on each Count, with terms to
be served concurrently. Doc. No. 347. Judgment was entered on July 17, 2007.
Doc. No. 354. On July 19, 2007, and July 25, 2007, Jauregui filed Notices of
Appeal.1 On January 21, 2009, the judgment was affirmed by the Ninth Circuit
Court of Appeals, Doc. No. 434, and the mandate issued on March 16, 2009. Doc.
No. 438. As a result, the time to petition to the U.S. Supreme Court for writ of
certiorari expired on or about April 21, 2009. Jauregui, however, did not file this
Petition until December 10, 2012 -- almost three years and eight months after that
time expired.
Because the Petition appeared time-barred, the court issued Jauregui a
December 13, 2012 Order to Show Cause (“OSC”) why his Petition should not be
denied as time-barred. Doc. No. 446.2 Specifically, after setting forth the
appropriate legal framework, the OSC ordered Jauregui “to SHOW CAUSE why
the Petition should not be dismissed as barred by the statute of limitations.”

1

The first Notice of Appeal was filed pro se. Doc. No. 357. The second was filed by
appointed counsel. Doc. No. 360. The first appeal was later dismissed as duplicative. Doc. No.
371.
2

Although the court may raise a statute of limitations issue sua sponte, it may not
dismiss a Petition without first giving the movant notice that the motion is subject to dismissal as
untimely and an opportunity to respond. Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001);
see also Day v. McDonough, 547 U.S. 198, 209 (2006).
2

Jauregui filed a response to the OSC on January 28, 2013. Doc. No. 447. After
reviewing the Petition and the response to the OSC, the court determines that the
Petition is time-barred and thus is DENIED.
III. ANALYSIS
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 affirmed Jauregui’s
conviction and sentence on January 21, 2009 (although the mandate issued on
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March 16, 2009). Jauregui did not file a petition for writ of certiorari. Thus, the
conviction became final ninety days after January 21, 2009. See id. at 527
(reasoning that “[t]he time to file a petition 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, Jauregui’s conviction became final on April
21, 2009, which is ninety calendar days after January 21, 2009. Therefore,
although Jauregui had one year from that date to file the Petition, he filed it on
December 10, 2012 -- almost two years and eight months late given the one-year
deadline outlined in § 2255(f)(1).
Sections 2255(f)(2) and (f)(3) also fail to provide Jauregui any relief
-- Jauregui 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.
Further, based on what is provided in the Petition and Jauregui’s
response to the OSC, § 2255(f)(4) 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
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reasonable, diligence.” Anjulo-Lopez v. United States, 541 F.3d 814, 818 (8th Cir.
2008) (quoting Wims v. United States, 225 F.3d 186, 190 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 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.
Jauregui attached a letter dated September 24, 2012 from the Superior
Court of California to Jauregui, indicating that Jauregui requested “copies of any
indictment in case 176933, MPD#98-12125, bkg # 444355 and No. 344179,” and
was told that “it appears that there was never an indictment in this case.” Doc. No.
445, Ex. A. That document, however, does not help Jauregui. Although tolling is
allowed in some circumstances when a prisoner is unaware of facts that could
support his claim, see, e.g., United States v. Battles, 362 F.3d 1195, 1199 (9th Cir.
2004), the prisoner must still act with reasonable diligence. Here, nothing in the
letter of September 24, 2012 indicates that Jauregui was reasonably diligent in
seeking to obtain information about his prior conviction (even if his prior
conviction from 1998, see Presentence Report at 16 ¶ 49, was not based on an
indictment, and even assuming that would be relevant). The information referred
to in the September 2012 letter was available since 1998, and Jauregui does not
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dispute that he was in fact convicted previously in state court. Section 2255
contains a clear policy of promptness in filing petitions, see Anjulo-Lopez, 541
F.3d at 819, and Jauregui does not fulfill that policy as he certainly could have
obtained any information regarding his prior conviction within the one-year
limitations period.
In his response to the OSC, Jauregui claims that he was sufficiently
diligent, but wholly fails to explain how he was diligent. The fact that he may have
been attempting to discover information from his trial counsel does not excuse the
lack of diligence from the time of his sentencing in July, 2007 until September
2012. Jauregui, with due diligence, certainly could have obtained the exact
information contained in the September 2012 letter within the one-year statute of
limitations.3
Similarly, the Petition does not indicate any circumstances that would
entitle Jauregui 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]
3

Jauregui also appears to argue that his can make a showing of “cause and prejudice,”
and thus his claim should be considered timely. A cause and prejudice analysis, however, relates
to whether or not a procedural bar applies to habeas claims, not the operation of the statute of
limitations.

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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). Jauregui has shown neither.
Jauregui’s Petition is DENIED.
IV. CERTIFICATE OF APPEALABILITY
In dismissing the Petition, the court must also address whether
Jauregui should be granted a certificate of appealability (“COA”). See R. 11
Governing § 2255 Cases in the U.S. Dist. Cts. (providing that “[t]he district court
must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant”) A COA may issue only if the petitioner “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
“The standard for a certificate of appealability is lenient.” Hayward v.
Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc). The petitioner is required
to demonstrate only “that reasonable jurists could debate the district court’s
resolution or that the issues are adequate to deserve encouragement to proceed
further.” Id. (citation and internal quotation marks omitted). The standard

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“requires something more than the absence of frivolity but something less than a
merits determination.” Id. (internal quotation marks omitted).
The court carefully reviewed whether Jauregui’s claims are timely,
outlined the statute of limitations for Jauregui, and provided the opportunity for
him to explain why the Petition is timely. He failed to do so. Based on the above
analysis, the court finds that reasonable jurists would not find the court’s rulings
debatable. Accordingly, a COA is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 7, 2013.

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

Jauregui v. United States, Civ. No. 12-00665 JMS-RLP, Cr. No. 05-00190 (04) JMS, Order: 1)
Denying Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody; and 2) Denying Certificate of Appealability

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