Bobadilla-Garcia v. United States of America

Filing 4

AMENDED INITIAL REVIEW ORDER (CR10-3008-MWB) denying in its entirety 1 PRO SE Motion to Vacate/Set Aside/Correct Sentence (2255). This case is dismissed in its entirety. No certificate of appealability will issue for any claim or contention in this case. Signed by Judge Mark W Bennett on 3/25/13. (copy w/nef mailed to pro se petitioner) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

VICTOR BOBADILLA-GARCIA,
Petitioner,

No.C12-3026-MWB
No. CR10-3008-MWB

vs.
UNITED STATES OF AMERICA,

AMENDED INITIAL REVIEW
ORDER

Respondent.
____________________
I. INTRODUCTION AND BACKGROUND
This case is before the court on petitioner Victor Bobadilla-Garcia’s pro se motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal
custody (Docket no. 1). In his motion, filed on April 19, 2012, petitioner BobadillaGarcia requests that the court reduce his sentence based on his agreement with the
prosecution for a reduction based on Federal Rule of Criminal Procedure 35(b). If it
plainly and conclusively appears from the face of a § 2255 motion and the files and records
of the case that the moving petitioner is not entitled to any relief, the court shall
summarily dismiss the motion. 28 U.S.C. § 2255; Rule 4(b) of the Rules Governing
Section 2255 Proceedings in the United States District Courts.
On August 27, 2010, defendant Bobadilla-Garcia pleaded guilty to conspiring to
distribute 500 grams or more of pure methamphetamine and to distribute 50 grams or more
of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C) and 846,
and distributing 50 grams or more of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B). On December 10, 2010, petitioner Bobadilla-Garcia was
sentenced to 78 months imprisonment and 5 years supervised release. Petitioner BobadillaGarcia did not appeal his sentence.
II. LEGAL ANALYSIS
A. Timeliness of Bobadilla-Garcia’s § 2255 Motion
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
104-132, Title I, § 105, 110 Stat. 1220, established a mandatory one-year “period of
limitation” for § 2255 motions, which runs from the latest of the following events:
(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)(1)-(4).
The finality of Bobadilla-Garcia’s conviction in this case is the only applicable date
of the four statutory dates in § 2255(f)(1)-(4). Bobadilla-Garcia makes no allegation that
an unconstitutional or unlawful act by the government prevented him from filing his § 2255
motion within the one-year limitation period, see 28 U.S.C. § 2255(f)(2), nor does he
assert that the Supreme Court recently recognized a right retroactively applicable to this

2

§ 2255 case. See §28 U.S.C. § 2255(f)(3). Moreover, Bobadilla-Garcia does not state
that the one-year limitation period under § 2255 should be calculated from a date, when
through the exercise of due diligence, he discovered the facts supporting his arguments for
relief. See 28 U.S.C. § 2255(f)(4).
There is no question that the one year limitation period for bringing a § 2255 motion
in this case expired before Bobadilla-Garcia filed his § 2255 motion. Bobadilla-Garcia
never appealed after judgment was entered on December 13, 2010. Therefore, BobadillaGarcia’s § 2255 one year limitation period expired on December 13, 2011, and, even if
the 10 day time period in which he would have had to file a notice of appeal to the Eighth
Circuit Court of Appeals were included in determining the date on which his conviction
became final, that date would then become December 23, 2011, and Bobadilla-Garcia’s
§ 2255 motion would still be untimely unless the time period for filing such a motion is
tolled.
Federal courts, including the Eighth Circuit Court of Appeals, have determined that
the AEDPA's one year period of limitations is not jurisdictional and, therefore, is subject
to equitable tolling in limited circumstances. See Earl v. Fabian, 556 F.3d 717, 722 (8th
Cir. 2009); Runyan v. Burt, 521 F.3d 942, 945 (8th Cir. 2008); Jihad v. Hvass, 267 F.3d
803, 805 (8th Cir. 2001); Gassler v. Bruton, 255 F.3d 492, 495 (8th Cir. 2001); Kreutzer
v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000); accord Cook v. Stegall, 295 F.3d 517,
519 (6th Cir. 2002); Dunlap v. United States, 250 F.3d 1001, 1004-07 (6th Cir. 2001);
Kapral v. United States, 166 F.3d 565, 567 (3d Cir. 1999); Sandvik v. United States, 177
F.3d 1269, 1271-72 (11th Cir. 1999). However, “‘[e]quitable tolling is proper only when
extraordinary circumstances beyond a prisoner's control make it impossible to file a
petition on time.’” Runyan, 521 F.3d at 945 (quoting Finch v. Miller, 491 F.3d 424, 427
(8th Cir. 2007)); accord Jihad, 267 F.3d at 805 (quoting Kreutzer, 231 F.3d at 463).

3

Here, Bobadilla-Garcia has not pointed to anything which would equitable toll the running
of the limitations period. Therefore, the AEDPA’s one year statute of limitations applies
in this case and Bobadilla-Garcia’s § 2255 motion is untimely. Respondent’s Motion to
Dismiss is granted and Bobadilla-Garcia’s § 2255 motion is dismissed.
B. Certificate Of Appealability
Denial of Bobadilla-Garcia’s § 2255 Motion raises the question of whether or not
he should be issued a certificate of appealability for his claims therein. The requirement
of a certificate of appealability is set out in 28 U.S.C. § 2253(c)(1), which provides, in
pertinent part, as follows:
(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the
court of appeals from—
***
(B) the final order in a proceeding under section 2255.
28 U.S.C. § 2253(c)(1)(B); accord FED. R. APP. P. 22(b). To obtain a certificate of
appealability on claims for § 2255 relief, a defendant must make “a substantial showing
of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir.
2000); Mills v. Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151
F.3d 872, 873-74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998);
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998). “A
substantial showing is a showing that issues are debatable among reasonable jurists, a court
could resolve the issues differently, or the issues deserve further proceedings.” Cox, 133
F.3d at 569. Moreover, the United States Supreme Court reiterated in Miller-El that
“‘[w]here a district court has rejected the constitutional claims on the merits, the showing

4

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.’” Miller-El, 537 U.S. Ct. at 338 (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
The court finds that reasonable jurists would not debate that a plain procedural bar
is present requiring the dismissal of Bobadilla-Garcia’s § 2255 motion, and no certificate
of appealability will issue in this case. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P.
22(b).
III. CONCLUSION
THEREFORE, for the reasons discussed above, petitioner Bobadilla-Garcia’s pro
se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence By A
Person In Federal Custody (docket no. 1) is denied in its entirety. This case is dismissed
in its entirety. No certificate of appealability will issue for any claim or contention in this
case.
IT IS SO ORDERED.
DATED this 25th day of March, 2013.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

5