Vasquez v. United States of America
Filing
12
Memorandum Opinion and Order granting 4 Motion to Dismiss 2 Motion to Vacate/Set Aside/Correct Sentence (2255) (CR07-3039-MWB) with prejudice as untimely. Judgment shall issue accordingly. No certificate of appealability will issue. terminated. Signed by Judge Mark W Bennett on 5/27/2014. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
LEODAN VASQUEZ,
No. C 14-3015-MWB
(No. CR 07-3039-MWB)
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND
ORDER REGARDING
RESPONDENT’S MOTION TO
DISMISS PETITIONER’S § 2255
MOTION AS UNTIMELY
___________________________
On March 13, 2014, petitioner Leodan Vasquez filed his pro se Motion Under 28
U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal
Custody (§ 2255 Motion) (docket no. 2). In his § 2255 Motion, Vasquez seeks relief
from his February 21, 2008, conviction by a jury of one count of conspiracy to distribute
and to possess with intent to distribute 500 grams or more of methamphetamine mixture
and one count of possession with intent to distribute and aiding and abetting possession
with intent to distribute 50 grams or more of methamphetamine mixture containing 5
grams or more of actual (pure) methamphetamine, see Verdict Form (Crim. docket no.
79),1 and his July 3, 2008, sentence (based on various enhancements) to 320 months of
imprisonment. Sentencing Hearing Minutes (Crim. docket no. 97); Judgment (Crim.
docket no. 98) (filed July 4, 2008). Vasquez appealed his sentence on July 10, 2008, but
1
The Superseding Indictment (Crim. docket no. 18) identifies the “conspiracy”
charge as a violation of 21 U.S.C. § 846, and the “possession with intent” charge as a
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2.
the Eighth Circuit Court of Appeals affirmed his sentence on January 21, 2009, see
Opinion (Crim. docket no. 173), and its Mandate (Crim. docket no. 178) issued on March
5, 2009. Vasquez did not file a petition for writ of certiorari by his April 21, 2009,
deadline to do so.
On January 14, 2014, Vasquez filed in his underlying criminal case a Motion For
Relief From Final Judgment Pursuant To Fed. R. Crim. P. 60(b)(6) (Crim. docket no.
197), in which he requested leave of court to file a Motion To Vacate Sentence And
Judgment Pursuant To 28 U.S.C. § 2255 and to consider such a motion timely. In an
Order (Crim. docket no. 198), filed January 16, 2014, however, I denied Vasquez’s
motion for leave to file a § 2255 motion, explaining that only if and when Vasquez filed
a § 2255 Motion would I consider and rule on its timeliness. Approximately three months
later, on March 13, 2014, Vasquez filed the § 2255 Motion now before me. In his § 2255
Motion, Vasquez asserts the following grounds for relief: (1) equitable tolling of the
statute of limitations for his § 2255 Motion; and (2) ineffective assistance of trial counsel
for not explaining the facts of entering a guilty plea to him where he how asserts that he
would have pleaded guilty instead of taking the case to trial. Vasquez bases his “equitable
tolling” claim on his prolonged period of incarceration in the Special Housing Unit
(SHU), for his own protection from Mexican prison gangs, which he contends allowed
him no access to legal resources, and his subsequent inability to find a bilingual inmate
to help him file his § 2255 Motion in English or to obtain the required forms in Spanish.
By Order (Civ. docket no. 3), filed March 14, 2014, I granted Vasquez’s
application to proceed in forma pauperis and directed the respondent to file an answer or
motion in response to Vasquez’s § 2255 Motion on or before May 15, 2014. On March
21, 2014, the respondent filed the Motion To Dismiss (Civ. docket no. 4) now before
me, asserting that Vasquez’s § 2255 Motion is untimely. The respondent argues that
Vasquez’s § 2255 Motion was filed approximately four years after the statute of
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limitations period for such a motion had expired on April 21, 2010. The respondent also
argues that Vasquez has not alleged any circumstances that would justify “equitable
tolling” of his deadline to file his § 2255 Motion. Specifically, the respondent argues
that Vasquez has not explained why he filed nothing between April 22, 2009, and October
2009, prior to his placement in the SHU, or why he waited so long after being released
from the SHU in December 2010 to file his § 2255 Motion. Consequently, the respondent
argues that Vasquez is not entitled to “equitable tolling” of his deadline to file his § 2255
Motion and that his § 2255 Motion should be dismissed as untimely.
By Order (Civ. docket no. 5), filed March 21, 2014, I directed the Clerk of Court
to appoint counsel to represent Vasquez in this matter; directed Vasquez to file, with the
aid of counsel, a response to the respondent’s Motion To Dismiss on or before April 23,
2014; and directed the respondent to file any reply on or before May 10, 2014. After an
extension of time, Vasquez’s counsel filed a Resistance To Motion To Dismiss (Civ.
docket no. 10) on May 14, 2014. In his Resistance, Vasquez’s counsel argues that
Vasquez’s extended stay in the SHU—whether from October 2009 until December 2010,
as the respondent contends and Vasquez alleged at one point in his § 2255 Motion, or
until August 17, 2012, as Vasquez elsewhere alleged in support of his § 2255 Motion—
allowed him no access to anyone who could help him file a § 2255 motion. He argues
that Vasquez was unable to file his § 2255 Motion without assistance of a bilingual
person, because he is not fluent in English. He also argues that, after Vasquez’s release
from the SHU, Vasquez could not find another inmate to help him file his § 2255 Motion,
either at the facility where he was first imprisoned or at a different facility to which he
was transferred, until 2014. He also argues that Vasquez filed his § 2255 Motion within
“a few days” of obtaining the needed assistance. Vasquez’s counsel requests that, at the
very least, I hold an evidentiary hearing on Vasquez’s “equitable tolling” claim, as well
as on the merits of his claim for § 2255 relief. The respondent filed a Reply (Civ. docket
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no. 11) in further support of its Motion To Dismiss on May 16, 2014. In its Reply, the
respondent argues that Vasquez’s stay in the SHU does not excuse the untimeliness of his
§ 2255 Motion, because Vasquez still has not accounted for his failure to file his § 2255
Motion in the five months before he was sent to the SHU. The respondent also argues
that Vasquez has provided inadequate documentation of precisely what periods he was in
the SHU and no evidence demonstrating that his placement in the SHU prevented him
from having access to a law library or other resources needed to file his § 2255 Motion.
Thus, the respondent argues, “equitable tolling” does not excuse the untimeliness of
Vasquez’s § 2255 Motion.
Section 2255 proceedings are civil in nature and, therefore, governed by the
Federal Rules of Civil Procedure, see, e.g., Mandacina v. United States, 328 F.3d 995,
1000 & n.3 (8th Cir.), cert. denied, 540 U.S. 1018 (2003), including Rule 12(b), which
provides for a pre-answer motion to dismiss on various grounds. In Moore v. United
States, 173 F.3d 1131 (8th Cir. 1999), the Eighth Circuit Court of Appeals held that the
references to a one-year “period of limitation” and a “limitation period” in 28 U.S.C.
§ 2255(f) “does not purport to limit the jurisdiction of the courts,” and, as such, the
“limitation period” is subject to “equitable tolling.”
173 F.3d at 1134.
More
importantly, here, because the “statute of limitations” in § 2255(f) is not “jurisdictional,”
a motion to dismiss based on untimeliness is pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, for “failure to state a claim upon which relief can be granted,”
rather than pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction.
Although factual “plausibility” is ordinarily the central focus of Rule 12(b)(6)
motions to dismiss under the Twom-bal standard,2 various federal Circuit Courts of
2
The “Twom-bal standard” is my nickname for the “plausibility” pleading
4
Appeals have expressly recognized, and the Eighth Circuit Court of Appeals has
suggested, that the Twom-bal standard still permits dismissal pursuant to Rule 12(b)(6)
of a claim that lacks a cognizable legal theory, in addition to permitting dismissal for
factual implausibility. See, e.g., Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir.
2013); Ball v. Famiglio, 726 F.3d 448, 469 (3d Cir. 2013) (a claim may be dismissed if
it is based on an “indisputably meritless legal theory”); Commonwealth Property
Advocates, L.L.C. v. Mortgage Electronic Registration Sys., Inc., 680 F.3d 1194, 1202
(10th Cir. 2011) (“Dismissal is appropriate if the law simply affords no relief.”); see
also Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013)
(recognizing that a claim must plead sufficient facts under a “viable legal theory”); cf.
Brown v. Mortgage Electronic Registration Sys., Inc., 738 F.3d 926, 933 n.7, 934 (8th
Cir. 2013) (noting the appellate court’s agreement “with the district court’s sound
reasoning that the facts pled do not state a cognizable claim under Arkansas law” and
holding that dismissal pursuant to Rule 12(b)(6) was appropriate, because Arkansas law
did not impose the purported duty on which an unjust enrichment claim and a state
statutory claim were based). It is precisely the lack of a cognizable legal theory for
Vasquez’s § 2255 Motion, as to timeliness of that Motion, that is the proper basis for the
respondent’s Motion To Dismiss in this case,
On the respondent’s Motion To Dismiss pursuant to Rule 12(b)(6), I may consider
the docket and documents filed in the underlying criminal case, from which Vasquez
seeks § 2255 relief, because they are “‘incorporated by reference or integral to [his]
standard established in the United States Supreme Court’s twin decisions on pleading
requirements, and standards for dismissal for failure to state a claim upon which relief
can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for
claims in federal court. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009).
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claim,’” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012)
(quoting 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1357 (3d ed. 2004)), and because they are “‘necessarily embraced by the
pleadings.’” Whitney, 700 F.3d at 1128 (quoting Mattes v. ABC Plastics, Inc., 323 F.3d
695, 697 n.4 (8th Cir. 2003)).
As amended by the AEDPA, 28 U.S.C. § 2255(f) provides as follows:
(f) 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(f). Thus, the AEDPA “imposed, among other things, a one-year
statute of limitations on motions by prisoners under section 2255 seeking to modify,
vacate, or correct their federal sentences.” Muhammad v. United States, 735 F.3d 812,
815 (8th Cir. 2013) (citing Johnson v. United States, 544 U.S. 295, 299 (2005)).
Vasquez does not contend that his § 2255 Motion is timely under any provision of
§ 2255(f). Vasquez’s § 2255 Motion was not filed within one year after his conviction
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and sentence became final on April 21, 2009, when he did not file a petition for writ of
certiorari to the United States Supreme Court, and he does not rely on any other statutory
“trigger” for the running of the limitations period. Rather, he asserts that “equitable
tolling” should excuse the untimeliness of his § 2255 Motion, even though it was filed
almost four years too late. The respondent contends that there is no basis for “equitable
tolling” in this case and that Vasquez’s § 2255 Motion must be dismissed as untimely.
The Eighth Circuit Court of Appeals recently summarized the requirements for
“equitable tolling” of the “limitations period” in § 2255(f) for a § 2255 motion, as
follows:
The one-year statute of limitation may be equitably
tolled “only if [the movant] shows ‘(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177
L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005))
(applicable to section 2254 petitions); see also United States
v. Martin, 408 F.3d 1089, 1093 (8th Cir.2005) (applying
same rule to section 2255 motions). We review this claim de
novo. See Martin, 408 F.3d at 1093.
Muhammad, 735 F.3d at 815.
Vasquez argues that his lack of fluency in English and his extended stay in the
SHU constitute the required “extraordinary circumstances” that “stood in his way and
prevented timely filing” of his § 2255 Motion. Id. (internal quotation marks and citations
omitted). However, in Muhammad, the Eighth Circuit Court of Appeals rejected a
federal prisoner’s contention that his confinement in the SHU for approximately five
months constituted “extraordinary circumstances” for purposes of “equitable tolling.”
Id. Specifically, the court explained,
As part of [Muhammad’s] detention [in the SHU],
[Muhammad] was not permitted to visit the prison’s law
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library and did not have access to his personal, legal
materials. While we do not foreclose the possibility that
another movant might be able to show how the conditions of
his confinement constitute an extraordinary circumstance
warranting the application of equitable tolling, Muhammad
fails to demonstrate how his five months of special
confinement prevented him from meeting the one-year statute
of limitations. He acknowledges that he was able to send
letters during this confinement which suggests he had access
to paper and writing implements. He does not claim that he
was prohibited from contacting the court or was denied any
mail sent from the court. Although he claims that he was not
allowed access to the prison’s law library during this special
confinement, we have recognized that equitable tolling was
not proper when an unrepresented prisoner claimed lack of
legal resources. See Kreutzer v. Bowersox, 231 F.3d 460, 463
(8th Cir.2000). Accordingly, we agree with the district court
that Muhammad’s five-month confinement in the Special
Housing Unit does not constitute an extraordinary
circumstance warranting the application of equitable tolling.
Muhammad, 735 F.3d at 815.
Here, like the prisoner in Muhammad, Vasquez does not claim that he was
prohibited from contacting the court or was denied any mail sent from the court. Id.
Instead, in his pro se Incorporated Memorandum Of Law (Civ. docket no. 2-1),
supporting his § 2255 Motion, to which he directs the court for “more detail” concerning
his claim of “equitable tolling” in his § 2255 Motion (Civ. docket no. 2) at 4, Vasquez
alleges the following:
Around the time from which Mr. Vasquez[’s] § 2255
[Motion] was due, he was confined in the SHU (Special
Housing Unit), without any legal expertise nor access to his
actual legal work. Mr. Vasquez did not get released from the
SHU until August 17, 2012, approximately two years, two
months and twenty-seven days past his due date which his
§ 2255 [Motion] should have been filed.
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Incorporated Memorandum Of Law at 3. He argues that “SHU records . . . support his
position showing the Court that it was indeed impossible for him to timely file his § 2255
motion and equitabl[y] toll the running of the limitations period.” Id. at 4. These
allegations, however, fail to demonstrate how his period of special confinement prevented
him from meeting the one-year statute of limitations. Muhammad, 735 F.3d at 815.
Because Vasquez does not allege that he was prohibited from contacting the court and
denied any mail sent from the court, and lack of access to a prison’s law library during
special confinement does not constitute an “extraordinary circumstance” justifying
“equitable tolling,” see id. (citing Kreutzer, 231 F.3d at 463), Vasquez’s confinement in
the SHU does not excuse the untimeliness of his § 2255 Motion.
Nor does Vasquez’s purported lack of fluency in English constitute the required
“extraordinary circumstance.” The Eighth Circuit Court of Appeals has rejected such a
contention, albeit in an unpublished per curiam decision, but one that relied on a
published decision of the Sixth Circuit Court of Appeals as rejecting equitable tolling
where the petitioner allegedly lacked proficiency in English, but had submitted court
filings in readable English. See Mendoza v. Minnesota, 100 F. App’x 587, 588 (8th Cir.
2004) (citing Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002)). Notwithstanding
Vasquez’s allegations that he could not formulate his § 2255 Motion in English without
assistance, which he alleges he could not obtain until a few days before he actually filed
his § 2255 Motion, Vasquez submitted correspondence and filings in readable English to
this court months before he filed his § 2255 Motion. See Pro Se Correspondence From
Defendant, dated September 3, 2013 (Crim. docket no. 195); Pro Se Correspondence
From Defendant, dated October 20, 2013 (Crim. docket no. 196); Pro Se Motion For
Relief From Final Judgment Pursuant To Fed. R. Crim.P. 60(b)(6) (Crim. docket no.
197); Pro Se Correspondence From Defendant, dated October 20, 2013, but post-marked
January 24, 2014 (Crim. docket no. 199).
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Thus, Vasquez’s “equitable tolling” claim fails on the “extraordinary
circumstances” prong of the analysis. See Muhammad, 735 F.3d at 815.
In addition, or in the alternative, Vasquez’s “equitable tolling” claim fails on the
“diligence” prong of the analysis.
Id.
The Eighth Circuit Court of Appeals has
explained, “The diligence required for equitable tolling purposes is ‘reasonable diligence’
not ‘maximum feasible diligence.’” Id. at 816 (quoting Holland v. Florida, 560 U.S.
631, 653 (2010), with internal citations and quotation marks omitted). I have previously
held that a prisoner does not necessarily have to act “immediately” to file a § 2255
Motion, after becoming aware that his counsel had not taken appropriate action or that
the § 2255(f) deadline was imminent or had passed. See Koons v. United States, ___ F.
Supp. 2d ___, 2014 WL 357734, *7 (N.D. Iowa Jan. 31, 2014). Even so, “reasonable
diligence” requires a prisoner to do something more than watch the statute of limitations
run out, where the record would show to a duly diligent person that the statute of
limitations was running. Cf. Anjulo-Lopez v. United States, 541 F.3d 814, 818-19 (8th
Cir. 2008) (finding that the prisoner had not acted diligently, where he waited an entire
year before he even tried to contact his attorney about his appeal, and the lack of any
notice of appeal was a matter of public record, which a duly diligent person in the
prisoner’s position could have discovered).
Here, nothing in the record suggests that the grounds for Vasquez’s “ineffective
assistance of counsel” claim for § 2255 relief were unknown or unknowable to him long
before his deadline to file his § 2255 Motion expired, for example, within the first five
months of his imprisonment, before he was sent to the SHU and purportedly prevented
from using the prison library or seeking assistance. Compare United States v. Martin,
408 F.3d 1089, 1091-92 (8th Cir. 2005) (concluding that a prisoner had acted diligently,
even though he did not file his § 2255 motion until almost five months after his deadline,
where his attorney had told him that there was no deadline). Moreover, notwithstanding
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Vasquez’s contentions that he could not file his § 2255 Motion until he found someone
to assist him and that he did file his § 2255 Motion within “days” of finding such a
person, the record shows that Vasquez was able to communicate effectively with the court
for at least several months before he finally filed his § 2255 Motion. I conclude that
Vasquez was not “diligent,” as required to take advantage of “equitable tolling.”
Muhammad, 735 F.3d at 815-16.
Finally, I conclude that Vasquez has failed to make a substantial showing that the
untimeliness of his § 2255 Motion is debatable among reasonable jurists, that a court
could resolve this issue differently, or that this question deserves further proceedings.
Consequently, a certificate of appealability is also denied.
See 28 U.S.C.
§ 2253(c)(1)(B); Miller-El v. Cockrell, 537 U.S. 322, 335-36; Cox v. Norris, 133 F.3d
565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998).
THEREFORE,
1.
The respondent’s March 21, 2014, Motion To Dismiss (Civ. docket no. 4)
is granted;
2.
This action is dismissed with prejudice as untimely under 28 U.S.C.
§ 2255(f);
3.
Judgment shall issue accordingly; and
4.
No certificate of appealability will issue.
IT IS SO ORDERED.
DATED this 27th day of May, 2014.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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