United States of America v. Villagrana

Filing 35

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 4/19/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICARDO VILLAGRANA,
Defendant.

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No.

07 C 3665

MEMORANDUM ORDER
This Court has received from the Clerk’s Office photocopies
of two documents self-prepared by Ricardo Villagrana
(“Villagrana”) that had been received in that office on April 7:
(1) an Application for Certificate of Appealability and (2) a
Memorandum in support of that Application.

Those documents are

extraordinarily puzzling under the circumstances and, at a
minimum, do not support the issuance of such a certificate (“COA”
for convenience).
What the docket in this case1 discloses is that Villagrana
had previously filed a 28 U.S.C. §22552 motion to vacate, set
aside or correct his sentence back on June 29, 2007.

This Court

1

This District Court’s practice, purely as a procedural
matter, is to assign a civil case number to any post-conviction
proceedings instituted by or on behalf of a person convicted on
federal criminal charges. That practice facilitates the
development and maintenance of a separate docket for such postconviction proceedings, without the record of those proceedings
becoming enmeshed in the criminal docket that deals with the
underlying conviction.
2

All further references to Title 28’s provisions will
simply take the form “Section--.”

promptly (on July 2) issued a memorandum opinion and order
(“Opinion,” reported at 494 F.Supp.2d 957) that dismissed the
Section 2255 motion and terminated the civil case.
Next Villagrana filed an application for a COA on July 30,
2007, and on July 31 this Court entered its memorandum order that
attached a copy of the Opinion and explained why in this Court’s
view no COA should be issued.

In addition the July 31 memorandum

order stated that Villagrana would either have to comply with the
requirements of Section 1915 to qualify for in forma pauperis
treatment or, alternatively, would have to pay the $455 in
appellate filing fees in advance.3

Finally, on April 14, 2008

our Court of Appeals issued its mandate that stated in part:
This court has reviewed the final order of the district
court and the record on appeal. We find no substantial
showing of the denial of a constitutional right. See
28 U.S.C. Section 2253(c)(2). Accordingly, the request
for a certificate of appealability is denied.
Villagrana’s motion to proceed in forma pauperis is
denied.
Three years of silence have elapsed since then.

Nothing in

Villagrana’s current Application for a COA or his supporting
Memorandum even suggests that this second effort to obtain postconviction relief is timely.

Indeed, Villagrana’s Memorandum

seeks to point to the decision in Bailey v. United States, 516

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On September 19, 2007, because Villagrana had then
properly pursued the first alternative, this Court ordered
payment of the appellate filing fees in installments as provided
in Section 1915(b)(1) and (b)(2).
2

U.S. 137 (1995) as assertedly invalidating his conviction,
heedless of the facts (1) that he had previously raised the
Bailey case in his first Section 2255 motion and (2) that the
Opinion (and consequently the Court of Appeals’ confirmatory
mandate) had rejected that effort.

Villagrana cannot in good

conscience relitigate the issue--particularly when his earlier
effort was itself untimely.
Accordingly this Court finds that no COA should issue.

As

always (and as Villagrana did the first time around), that issue
may be presented to the Court of Appeals for its consideration.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

April 19, 2011

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