Marquez v. United States of America

Filing 3

ORDER and OPINION entered by Judge Joe Billy McDade on 3/8/2013. It is therefore ordered: Clerk shall serve a copy of the Motion 1 by certified mail upon Respondent. Petitioner is allowed until 4/18/2013 to file a brief explaining why his circumstances justify equitable tolling, and Respondent shall file its response by 4/30/2013. (See Order). (cc: Petitioner) (KB, ilcd)

E-FILED

Friday, 08 March, 2013 09:55:55 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
ROBERTO LUIS MARQUEZ,

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Petitioner,
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v.
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UNITED STATES OF AMERICA, )
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Respondent.
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Case No. 13-cv-4020

ORDER & OPINION
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). In the § 2255 Motion, the
Court discerns the following challenges to Petitioner’s 2011 conviction for
conspiracy to distribute cocaine: (1) the base offense level of his sentence was
improperly enhanced and did not comply with the terms of his plea agreement; and
(2) Petitioner’s trial counsel provided ineffective assistance by (a) failing to file an
appeal upon Petitioner’s request, (b) failing to communicate and to explain the
consequences of entering a guilty plea agreement, (c) failing to timely negotiate a
favorable plea agreement, (d) failing to raise the issues of entrapment and to
explore the possibilities of obtaining a downward departure in plea negotiations,
and (e) failing to object to an enhanced sentence at the sentencing hearing that
deviated from the terms of the plea agreement. (Doc. 1 at 1-2, 4, 13).
Without regard to the merits, the instant Motion appears to be untimely, as
the one-year statute of limitations from the date on which the judgment of

conviction became final pursuant to 28 U.S.C. § 2255(f)(1)1 has already run. As
affirmed by the Supreme Court in Clay v. United States, “for the purpose of starting
the clock on § 2255’s one-year limitation period . . . 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.”

537 U.S. 522, 525 (2003). The

Court further delineated that the time to petition for certiorari expires 90 days after
entry of the Court of Appeals’ judgment. Id.
Here, the Court of Appeals entered judgment on November 9, 2011. (No. 10CR-40045, Doc. 51). Thus, the time in which Petitioner could have petitioned for
certiorari expired on February 8, 2012 and triggered the one-year statute of
limitations under § 2255 as of that date.

Petitioner, however, did not file the

present Motion until February 26, 2013 – more than one year after the time for
seeking certiorari expired. Because a possibility exists to equitably toll the statute
of limitations for § 2255 petitioners in a proper case, the Court chooses to afford the
Petitioner an opportunity to address the timeliness issue before disposing of the
Motion. Clarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013) (affirming that
the statute of limitations in § 2255 can be tolled); Nolan v. United States, 358 F.3d
480, 484 (7th Cir. 2004) (recognizing the possibility of equitable tolling for § 2255
petitioners). Petitioner is allowed until April 18, 2013 to file a brief, if cause exist,
in support of equitable tolling of the limitation period. Respondent is allowed until
April 30, 2013 to file a response to any argument by Petitioner for equitable tolling.
Petitioner refers only to the date of judgment of conviction and does not raise the
applicability of the other subsections of 28 U.S.C. § 2255(f) to trigger the statute of
limitations; thus, the one year period of limitation shall run from the date on which
the judgment of conviction became final.
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IT IS THEREFORE ORDERED:
1. The Clerk SHALL serve a copy of the Motion (Doc. 1) by certified mail upon
Respondent pursuant to Rule 4 of the Rules Governing Section 2255
Proceedings for the United States District Courts.
2. Petitioner is allowed until April 18, 2013 to file a brief explaining why his
circumstances justify equitable tolling, and Respondent SHALL file its
responses by April 30, 2013.
3. After receiving briefing on the question of equitable tolling, the Court will
either dismiss the Motion as untimely or complete its review under Rule 4 of
the Rules Governing Section 2255 Proceedings for the United States District
Courts.
4. Petitioner SHALL serve upon Respondent a copy of every further pleading or
other document submitted for consideration by the Court.

Entered this 8th day of March, 2013.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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