United States of America v. Arriaga-Cabrera

Filing 14

MEMORANDUM Opinion Signed by the Honorable Charles P. Kocoras on 1/10/2014. Mailed notice (mgh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
v.
JOSE ARRIAGA-CABRERA

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13 C 5585

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on the motion of Petitioner Jose ArriagaCabrera (“Arriaga-Cabrera”) to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255 (“Section 2255”). For the reasons set forth below, the petition is
dismissed as untimely, and the issuance of a certificate of appealability is denied.
BACKGROUND
On September 22, 2011, a grand jury indicted Arriaga-Cabrera on one count of
illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2) and 6 U.S.C. § 202(4).
On December 20, 2011, Arriaga-Cabrera pleaded guilty pursuant to a written plea
agreement.

This Court sentenced Arriaga-Cabrera to forty-six months of

imprisonment on March 21, 2012. The judgment was entered onto the docket on
March 22, 2012. Arriaga-Cabrera failed to file a notice of appeal within fourteen days
of the entry of the judgment. See Fed. R. App. P. 4(b)(1)(A)(i). On August 1, 2013,

Arriaga-Cabrera moved to vacate, set aside, or correct his sentence pursuant to
Section 2255.1
LEGAL STANDARD
Section 2255 permits the sentencing court to vacate, set aside, or correct a
sentence after direct review on the grounds that the sentence was imposed in violation
of the Constitution or laws of the United States. 28 U.S.C. § 2255(a). A prisoner
seeking relief under Section 2255 must file his petition within one year after the
judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). This limitations
period is not jurisdictional but rather a procedural period of limitations subject to
equitable tolling, a remedy which “is granted sparingly.” United States v. Marcello,
212 F.3d 1005, 1010 (7th Cir. 2000). “Extraordinary circumstances far beyond the
litigant’s control must have prevented timely filing.” Id. at 1010. In addition, the
petitioner must demonstrate that he has diligently pursued his claim in spite of these
extraordinary circumstances, for which he must not be at fault. Holland v. Florida,
130 S. Ct. 2549, 2562 (2010). Courts should construe pleadings filed by pro se
prisoners liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

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Though the petition’s filing date is listed as August 5, 2013, Arriaga-Cabrera signed it on
August 1, 2013, and the Court shall utilize this date in determining the timeliness of ArriagaCabrera’s petition. Cf. Houston v. Lack, 487 U.S. 266, 271 (1988) (pro se prisoner’s notice of
appeal is deemed to have been filed when provided to prison officials for mailing); see also
Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999) (holding that the “mailbox rule” articulated
in Houston applies to pro se habeas petitioners).

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DISCUSSION
I.

Date of Finality of Judgment
Though Arriaga-Cabrera’s petition was obviously filed more than a year after

the judgment had become final, the Court shall, in the interest of thoroughness,
determine the date upon which the judgment became final. In Clay v. United States,
537 U.S. 522, 527 (2003), the Supreme Court held that a judgment under Section
2255 becomes final in the case of a defendant who does not seek a writ of certiorari
on the date upon which the time to do so expires. Neither the Supreme Court nor the
Seventh Circuit has decided when a judgment becomes final under Section 2255 in
the case of a defendant who fails to file a notice of appeal.
This Court has previously held that, where a petitioner has failed to file a notice
of appeal, a judgment becomes final on the date upon which the time to file the notice
of appeal has expired. See United States v. Vega, No. 07 C 602, 2007 U.S. Dist.
LEXIS 42378, at *10-11 (N.D. Ill. June 12, 2007). Most circuits have concurred with
this Court’s holding. See Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999);
Sanchez-Castellano v. United States, 358 F.3d 424, 427-28 (6th Cir. 2004); Moshier v.
United States, 402 F.3d 116, 118 (2d Cir. 2005); Anjulo-Lopez v. United States, 541
F.3d 814, 816 n. 2 (8th Cir. 2008); Murphy v. United States, 634 F.3d 1303, 1308
(11th Cir. 2011); United States v. McGaughy, 670 F.3d 1149, 1152 n. 2 (10th Cir.
2012); United States v. Scruggs, 691 F.3d 660, 669 (5th Cir. 2012). Contra United
States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001) (holding that a judgment
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becomes final on the date upon which it is entered). District courts within the Fourth
Circuit have continued to apply Sanders even after Clay, and the Fourth Circuit has
not revisited the issue. In light of the profound weight of contrary authority, however,
including unanimity among the circuits which have decided the issue after Clay, this
Court reaffirms its holding in Vega. Hence, Arriaga-Cabrera’s judgment became final
on April 5, 2012, the date upon which his time to file a notice of appeal expired.
Since he filed his petition after April 5, 2013, it is untimely.
II.

Equitable Tolling
Though Section 2255(f) does contain three other starting dates upon which the

one year statute of limitations is triggered, Arriaga-Cabrera does not seek relief under
any of these alternative provisions. Rather, he avers that this Court should apply the
doctrine of equitable tolling because he was not transferred to a Bureau of Prisons
(“BOP”) facility until November 21, 2012. This argument is unavailing, however, for
Arriaga-Cabrera has not demonstrated a nexus between his not having been in a BOP
facility and his inability to file his Section 2255 petition in a timely fashion. Put
another way, Arriaga-Cabrera’s not having been in a BOP facility does not constitute
extraordinary circumstances. Furthermore, Arriaga-Cabrera has not shown how he
diligently pursued his claim in spite of this impediment. He thus has satisfied neither
criterion necessary to trigger equitable tolling. Having adjudicated Arriaga-Cabrera’s
petition on this threshold issue, the Court need not address the petition on its merits.

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III.

Certificate of Appealability
The Court now must determine whether to issue a certificate of appealability,

as it has ruled adversely to Arriaga-Cabrera. See Rule 11(a) of the Rules Governing
Section 2255 Proceedings for the United States District Courts. A defendant must: (i)
request a certificate of appealability; and (ii) make a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003) (prisoner not entitled to a certificate of appealability as of
right). This standard is satisfied if a prisoner can demonstrate that reasonable jurists
would find the district court’s assessment of the prisoner’s constitutional claims to be
debatable or wrong and that any dispositive procedural ruling by the district court is
likewise debatable. Id. at 336. Arriaga-Cabrera has not shown the denial of a
constitutional right, and the Court thus denies the issuance of a certificate of
appealability.
CONCLUSION
For the foregoing reasons, Arriaga-Cabrera’s petition is dismissed as untimely,
and the Court denies the issuance of a certificate of appealability.

____________________________________
Charles P. Kocoras
United States District Judge
January 10, 2014
Dated: ______________________

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