Chapelli-Pedroso v. United States of America

Filing 6

ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action 10-cr-108); 4 First Amended MOTION to Vacate, Set Aside or Correct Sentence (2255); and 5 Second Amended MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Yordan Chapelli-Pedroso are denied as untimely. A certificate of appealability is denied. Signed by Chief Judge Linda R Reade on 4/10/14. (ksy)(Copy w/NEF to Plf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

YORDAN CHAPELLI-PEDROSO,
Movant,

No. C12-0121-LRR
No. CR10-0108-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

____________________________
This matter appears before the court on Yordan Chapelli-Pedroso’s first amended
motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket
no. 4).1 Yordan Chapelli-Pedroso (“the movant”) filed such motion on December 21,
2012. Also before the court is the movant’s original motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1), which the clerk’s office
received and filed on December 4, 2012, and second amended motion to vacate, set aside
or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 5), which the movant
filed on July 18, 2013. For the following reasons, the movant’s 28 U.S.C. § 2255 motion
shall be denied.2 In addition, the movant’s original motion to vacate, set aside or correct
1

If a prisoner is in custody pursuant to a sentence imposed by a federal court and
such prisoner claims “that the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack, [the prisoner] may move the court which imposed
the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255; see also
Daniels v. United States, 532 U.S. 374, 377 (2001).
2

No response from the government is required because the first amended motion
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sentence pursuant to 28 U.S.C. § 2255 and second amended motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255 shall be denied. Lastly, a certificate of
appealability shall be denied.
The AEDPA contains a one year period of limitation during which a 28 U.S.C. §
2255 motion must be filed.3 The statute of limitation begins to run from the latest of four

(...continued)

to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 and file make clear
that the movant is not entitled to relief. See 28 U.S.C. § 2255; Rule 4(b), Rules
Governing Section 2255 Proceedings. Similarly, an evidentiary hearing is not necessary.
See Rule 8, Rules Governing Section 2255 Proceedings; see also Engelen v. United States,
68 F.3d 238, 240-41 (8th Cir. 1995) (stating that district court may summarily dismiss a
motion brought under 28 U.S.C. § 2255 without an evidentiary hearing “if (1) the . . .
allegations, accepted as true, would not entitle the [movant] to relief, or (2) the allegations
cannot be accepted as true because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact”); United States v. Oldham, 787
F.2d 454, 457 (8th Cir. 1986) (stating that district court is given discretion in determining
whether to hold an evidentiary hearing on a motion under 28 U.S.C. § 2255).
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A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run 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.
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circumstances. The first of these circumstances is the date on which the judgment of
conviction became final. Here, the movant’s conviction became “final” on November 29,
2011, that is, the last date he could have filed a petition for a writ of certiorari. See Clay
v. United States, 537 U.S. 522, 527 (2003) (“Finality attaches when [the United States
Supreme Court] affirms a conviction on the merits on direct review or denies a petition for
a writ of certiorari, or when the time for filing a certiorari petition expires.”); Sup. Ct. R.
13 (setting forth time for petitioning for a writ of certiorari). Given such date, the movant
needed to file the instant motion by no later than November 29, 2012. The movant did not
file his first amended motion to vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255 until December 21, 2012, which is approximately three weeks past the last day it
properly could have been filed.4 Further, the movant is unable to rely on any of the
remaining three timeliness provisions set forth in 28 U.S.C. § 2255.
The Eighth Circuit Court of Appeals has held that the doctrine of equitable tolling
applies to 28 U.S.C. § 2255 motions. United States v. Martin, 408 F.3d 1089, 1092-93
(8th Cir. 2005).

However, equitable tolling only applies “where ‘extraordinary

circumstances’ beyond a prisoner’s control prevent timely filing.”

Id. at 1093 (citing

Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001), Kreutzer v. Bowersox, 231 F.3d 460,
463 (8th Cir. 2000), and Paige v. United States, 171 F.3d 559, 561 (8th Cir. 1999)).
“Ineffective assistance of counsel, where it is due to an attorney’s negligence or mistake,
4

Although the movant stated in his original motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255 that it was timely filed because he put it in the
prison’s mailbox on November 28, 2012, the movant did not date it when he signed it.
And, the envelope that the movant utilized when submitting his original motion to vacate,
set aside or correct sentence pursuant to 28 U.S.C. § 2255 does not contain a postmark.
Moreover, the original motion to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255 purports to assert three claims for relief, but the movant did not specify any
details regarding such claims. So, for all practical purposes, the movant did not submit
anything on November 28, 2012, and the earliest that the movant submitted the four claims
that are set forth in the movant’s first amended motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255 was December 21, 2012.
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has not generally been considered an extraordinary circumstance in this regard.” Id.
(citing Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002), and Rouse v. Lee, 339 F.3d 238,
248 (4th Cir. 2003)); see also Kreutzer, 231 F.3d at 463 (holding “counsel’s confusion
about the applicable statute of limitations does not warrant equitable tolling”). The movant
does not offer a valid excuse for failing to timely file his 28 U.S.C. § 2255 motion.
Therefore, the court finds that the movant’s situation does not fall within the limitation
period allowed by 28 U.S.C. § 2255.
In sum, the claims that the movant asserts could have been asserted before a
judgment of conviction was entered, on direct appeal or in a timely 28 U.S.C. § 2255
motion. “‘The one year period provided him with reasonable opportunity to file for relief;
and if that time period has expired, it is the result of his own doing and not due to any
inadequacy in the statute.’” United States v. Lurie, 207 F.3d 1075, 1078 (8th Cir. 2000)
(quoting Charles v. Chandler, 180 F.3d 753, 755 (6th Cir. 1999)). Although this is a
harsh rule, it is the law. Accordingly, the movant’s first amended motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 shall be denied.5
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The court notes that, aside from the fact that the movant’s claims are untimely,
relief is not warranted because the record belies the movant’s assertions. Indeed, it is clear
that the movant knowingly and voluntarily pleaded guilty. See Walker v. United States,
115 F.3d 603, 604 (8th Cir. 1997) (“[A] valid guilty plea forecloses an attack on
conviction unless ‘on the face of the record the court had no power to enter the conviction
or impose the sentence.’”); United States v. Jennings, 12 F.3d 836, 839 (8th Cir. 1994)
(a voluntary and unconditional guilty plea waives all defects except those related to
jurisdiction). Further, it is apparent that the conduct of counsel fell within a wide range
of reasonable professional assistance, Strickland v. Washington, 466 U.S. 668, 689 (1984),
and any deficiencies in counsel’s performance did not prejudice the movant’s defense, id.
at 692-94. The movant’s claims regarding ineffective assistance of counsel are devoid of
merit, especially considering that: (1) the issue of whether the movant faced a five year
mandatory minimum sentence or a ten year mandatory minimum sentence was addressed
by the parties and the court prior to the movant’s guilty plea being accepted by the court;
(2) the movant never voiced any concern when the court confirmed during the sentencing
hearing that he faced a ten year mandatory minimum sentence and asked whether his plea
(continued...)
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In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. §
2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability
under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability
may issue only if a movant has made a substantial showing of the denial of a constitutional
right. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Garrett v. United States,
211 F.3d 1075, 1076-77 (8th Cir. 2000); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th
Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523.
To make such a showing, the issues must be debatable among reasonable jurists, a court
could resolve the issues differently, or the issues deserve further proceedings. Cox, 133
F.3d at 569 (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)); see also MillerEl, 537 U.S. at 335-36 (reiterating standard).
Courts reject constitutional claims either on the merits or on procedural grounds.
“‘[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant] must
demonstrate that reasonable jurists would find the district court’s assessment of the

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(...continued)
was still guilty; (3) the movant expressed that he understood the details of his pre-sentence
investigation report; (4) the court appropriately considered relevant conduct under USSG
§ 1B1.3, cf. United States v. Resinos, 631 F.3d 886, 887-88 (8th Cir. 2011); (5) the
movant’s sentence of 151 months imprisonment exceeded the five year mandatory
minimum sentence and the ten year mandatory minimum sentence; (6) Alleyne v. United
States, ___ U.S. ___, 133 S. Ct. 2151 (2013), was decided well after the movant’s
sentence became final; and (7) the Supreme Court has not made Alleyne retroactive to
cases on collateral review, see Simpson v. United States, 721 F.3d 875, 876 (7th Cir.
2013); United States v. Redd, 735 F.3d 88, 91-92 (2d Cir. 2013).
5

constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). When a federal habeas petition is dismissed on
procedural grounds without reaching the underlying constitutional claim, “the [movant
must show], at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” See Slack,
529 U.S. at 484.
Having thoroughly reviewed the record in this case, the court finds that the movant
failed to make the requisite “substantial showing” with respect to the claims that he raised
in his first amended motion to vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). Because he does not present
a question of substance for appellate review, there is no reason to grant a certificate of
appealability. Accordingly, a certificate of appealability shall be denied. If he desires
further review of his 28 U.S.C. § 2255 motion, the movant may request issuance of the
certificate of appealability by a circuit judge of the Eighth Circuit Court of Appeals in
accordance with Tiedeman, 122 F.3d at 520-22.
IT IS THEREFORE ORDERED:
(1)

The movant’s original motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. § 2255 (civil docket no. 1), first amended motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil
docket no. 4) (docket no. 4) and second amended motion to vacate, set aside
or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 5) are
DENIED as untimely.

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(2)

A certificate of appealability is DENIED.

DATED this 10th day of April, 2014.

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