Sosa-Jimenez v. United States of America
Filing
22
MEMORANDUM OPINION AND ORDER granting 7 Motion for Summary Judgment; and denying in its entirety 1 Motion to Vacate/Set Aside/Correct Sentence (2255) (CR08-4009 MWB). This case is dismissed. No certificate of appealability will issue for any claim or contention in this case. Signed by Judge Mark W Bennett on 02/11/2014. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
EDER NOE SOSA-JIMENEZ,
No. C11-4032-MWB
No. CR08-4009-MWB
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND
ORDER REGARDING
RESPONDENT’S MOTION FOR
SUMMARY JUDGMENT
___________________________
TABLE OF CONTENTS
I.
INTRODUCTION........................................................................... 2
A.
Procedural Background ........................................................... 2
1.
Criminal case proceedings ................................................ 2
2.
Petitioner’s § 2255 Motion ............................................... 4
B.
Factual Background ............................................................... 5
II.
LEGAL ANALYSIS ........................................................................ 7
A.
Standards For Summary Judgment ............................................. 7
B.
Standards For Equitable Tolling................................................. 8
C.
Petitioner’s Equitable Tolling Claim ............................................ 9
1.
“Diligence” .................................................................. 9
2.
“Extraordinary circumstances” ....................................... 11
3.
Disposition ................................................................. 13
D.
Certificate Of Appealability ..................................................... 14
III.
CONCLUSION ............................................................................ 15
I.
INTRODUCTION
This case is before me on the respondent’s motion for summary judgment, in
which the respondent seeks dismissal of petitioner Eder Noe Sosa-Jimenez’s pro se
Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person
In Federal Custody as untimely pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Sosa-Jimenez resists respondent’s motion and contends that the statute of
limitations on his § 2255 motion should be equitably tolled, owing to the conduct of his
trial counsel, which prevented him from timely filing his § 2255 Motion.
A.
1.
Procedural Background
Criminal case proceedings
On January 24, 2008, Sosa-Jimenez, along with three other individuals, was
charged by a four-count Indictment. Sosa-Jimenez was charged in Count 1 with being
a previously deported alien who was found in the United States without the express
consent of the Attorney General or his successor, the Secretary for Homeland Security,
in violation of 8 U.S.C. § 1326(a). The other three defendants were charged, in Counts
2 through 4, with illegal entry, in violation of 8 U.S.C. § 1325(a). On April 18, 2008,
Sosa-Jimenez’s case was severed from the other defendants because each of the
defendants was charged with a completely separate and unrelated crime, and SosaJimenez, alone, was charged with a felony while the others were charged with
misdemeanors.
On May 29, 2008, a seven-count Superseding Indictment was filed, charging SosaJimenez and Leandro Cervantez-Murillo with conspiring to distribute and possess with
intent to distribute 50 grams or more of pure methamphetamine or a mixture or substance
containing 500 grams of methamphetamine, and to employ, hire, use, persuade, induce,
or coerce a minor to distribute or possess with intent to distribute methamphetamine, in
2
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 861(b) (Count 1);
distributing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C)
(Count 2); employing, hiring, using, persuading, inducing, or coercing a minor to
distribute, and aid and abet the distribution of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), 861(a)(1), 861(b), and 18 U.S.C. § 2 (Count 3); and distributing
and aiding and abetting the possession with intent to distribute 50 grams or more of a
methamphetamine mixture which contained 5 grams or more of pure methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2 (Count 5). SosaJimenez was also charged with possessing with intent to distribute and aiding and abetting
the possession with intent to distribute 50 grams or more of a methamphetamine mixture
which contained 5 grams or more of pure methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2 (Count 6) and with being a previously
deported alien who was found in the United States without the express consent of the
Attorney General or his successor, the Secretary for Homeland Security, in violation of
8 U.S.C. § 1326(a) (Count 7).1
On September 18, 2008, Sosa-Jimenez pleaded guilty to the illegal reentry charge.2
On September 22, 2008, he proceeded to trial on the remaining charges. Following a
three day trial, Sosa-Jimenez was convicted, on September 24, 2008, on Counts 1, 2, 3,
and 5, but was found not guilty on Count 6. On April 8, 2009, Sosa-Jimenez’s counsel
filed a motion for downward variance. Sosa-Jimenez appeared before me on April 17,
Cervantez-Murillo was also charged with distributing and aiding and abetting the
distribution of 50 grams or more of a methamphetamine mixture which contained 5 grams
or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B),
and 18 U.S.C. § 2 (Count 4).
1
On September 11, 2008, Cervantez-Murillo pleaded guilty before Senior United
States Judge Donald E. O’Brien to Counts 1, 2, 3, and 4.
2
3
2009, for sentencing. I found that Sosa-Jimenez’s total offense level was 37 with a
criminal history category of I, for an advisory United States Sentencing Guideline range
of 210 to 262 months. I granted Sosa-Jimenez’s motion for downward variance, and
sentenced him to 180 months of imprisonment on Counts 1, 3, and 5, and 24 months
imprisonment on Count 7, with the sentences to be served concurrently. Judgment was
entered accordingly on April 20, 2009. Sosa-Jimenez did not appeal his conviction or
sentence.
2.
Petitioner’s § 2255 Motion
On March 28, 2011, Sosa-Jimenez filed a pro se Motion Under 28 U.S.C. § 2255
To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. In his pro
se § 2255 motion, Sosa-Jimenez asserts that his trial counsel provided ineffective
assistance. More specifically, he claims that his trial counsel was ineffective in failing
to file an appeal after sentencing, despite his request that he do so. After respondent filed
its answer, I set a briefing schedule and counsel was appointed to represent Sosa-Jimenez
on the § 2255 motion. Sosa-Jimenez timely filed his supplemental brief in support of his
§ 2255 motion. Respondent, in turn, filed a motion to dismiss, seeking dismissal of SosaJimenez’s § 2255 Motion as untimely pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Sosa-Jimenez filed a resistance, conceding that his § 2255 Motion was
not filed within one year of the date of the judgment of conviction, but asserting that the
statute of limitations on his § 2255 Motion should be equitably tolled, owing to the
conduct of his trial counsel, which prevented him from timely filing his § 2255 motion.
Because both parties had submitted affidavits that I ordinarily could not consider on a
Rule 12(b)(6) motion to dismiss, I notified the parties that I was converting respondent’s
motion to dismiss into a motion for summary judgment pursuant to Rules 12(d) and 56
of the Federal Rules of Civil Procedure, and set a schedule for the parties to file any
supplemental materials in support of their position. Respondent did not submit any
4
additional materials. Sosa-Jimenez filed a supplemental brief in which he attached his
original petition and supporting affidavit.3
B.
Factual Background
The facts here are largely disputed. Whether the disputed allegations give rise to
a genuine issue of material fact will be discussed in my legal analysis.
Sosa-Jimenez avers that:
2.
On the day I was sentenced, I talked to Mr. Esteves in
Court to advise him of my desire to Appeal.
3.
After sentencing by the Trial Judge I was informed of
my right to appeal and asked by the Trial Judge if I
wished to appeal I answered yes and he advised
Mr. Esteves to file a Notice of Appeal and he failed to
do so.
4.
Mr. Esteves informed me after sentencing by the trial
Court that he would file the notice of appeal within the
10 day notice.
5.
I wrote Mr. Esteves many times from Federal Prison
requesting him about my appeal and never heard
anything, he abandoned me and denied me my Right to
File and [sic] Notice of Appeal.
Petitioner’s Aff. at ¶¶ 2-5.
The respondent disputes Sosa-Jimenez’s assertions and has presented the affidavit
of Alexander M. Esteves, Sosa-Jimenez’s defense counsel, who avows, in pertinent part,
that: “[T]he defendant, after being advised by the district court judge following his
3
Neither party requested oral arguments on the pending motion in the manner
required by applicable local rules. I have not found oral arguments to be necessary, in
light of the parties’ written submissions.
5
sentence that he had a right to appeal, never asked me to appeal his case; not in person,
not via telephone or not via letter. . . After the defendant was sentenced, I never heard
from him again.” Esteves Aff. at ¶ 5. Esteves further swears that he has never refused
to file an appeal and “even if the defendant had not requested an appeal, if I believed
there were grounds for an appeal, I would have filed one on his behalf on my own
volition.” Esteves Aff. At ¶¶ 7-8.
At Sosa-Jimenez’s sentencing, the following colloquy occurred regarding SosaJimenez’s right to file an appeal:
THE COURT:
You have the right to appeal the
sentence that I’ve imposed. If you decide to appeal, you need
to file a written appeal with the clerk of our court within ten
days from the date the judgment is signed. If you can’t afford
to pay for a lawyer or pay for the costs of an appeal, those
costs will be paid on your behalf. Mr. Esteves, anything
further on behalf of Mr. Sosa-Jimenez?
MR. ESTEVES: Yes, Your Honor, if I may. Your
Honor, just one thing. The defendant informs me that his
parents – now that he’s not there, they’re going to be moving
to San Bernardino, and the defendant informs me that he’d
like to go to – if possible, go to a prison close to San
Bernardino. This is the first I’ve heard of it.
THE COURT:
Okay. That’s fine. I’ll make that
recommendation instead, a facility as close to San Bernardino.
That would be California.
MR. ESTEVES:
That’s correct.
THE COURT:
I’ll be glad to make
recommendation. Anything else, Mr. Esteves?
MR. ESTEVES:
Thank you.
that
I have nothing further, Judge.
Sentencing Tr. at 18.
6
II.
A.
LEGAL ANALYSIS
Standards For Summary Judgment
Summary judgment is only appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show that there
is no genuine issue of material fact and that the moving party is entitled to a judgment as
a matter of law.” FED. R. CIV. P. 56(c) (emphasis added); see Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (“Summary judgment is appropriate if viewing
the record in the light most favorable to the nonmoving party, there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law.”); see
generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, “[t]he movant
‘bears the initial responsibility of informing the district court of the basis for its motion,’
and must identify ‘those portions of [the record] . . . which it believes demonstrate the
absence of a genuine issue of material fact.’” Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). In response,
“[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt
as to the material facts,’ and must come forward with ‘specific facts showing that there
is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986)).
When the parties have met their burden, the district judge’s task is as follows:
“On a motion for summary judgment, ‘facts must be viewed
in the light most favorable to the nonmoving party only if
there is a genuine dispute as to those facts.’” Ricci v.
DeStefano, –––U.S. ––––, 129 S. Ct. 2658, 2677, 174 L. Ed.
2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372, 380,
127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (internal
quotations omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
7
150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986). . . . . “‘Where the record
taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.’”
Ricci, 129 S. Ct. at 2677, quoting Matsushita, 475 U.S. at
587, 106 S. Ct. 1348.
Torgerson, 643 F.3d at 1042-43.
“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ryan v. Capital Contractors, Inc., 679
F.3d 772, 776 (8th Cir. 2012). However, summary judgment is particularly appropriate
when only questions of law are involved, rather than factual issues that may or may not
be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d
617, 620 (8th Cir. 2006).
B.
Standards For Equitable Tolling
The “governing law” against which the parties’ factual contentions must be
measured on summary judgment in this case, see Anderson, 477 U.S. at 248, is the law
of “equitable tolling” of the statute of limitations for § 2255 motions. The Eighth Circuit
Court of Appeals summarized the context and requirements for “equitable tolling,” as
follows:
We begin by noting the Antiterrorism and Effective
Death Penalty Act of 1996 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. See Johnson v. United States, 544 U.S.
295, 299, 125 S. Ct. 1571, 161 L.Ed.2d 542 (2005). The oneyear 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
8
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 v. United States, 735 F.3d 812, 815 (8th Cir. 2013).
C.
Petitioner’s Equitable Tolling Claim
I will consider the two prongs of Sosa-Jimenez’s equitable tolling claim in turn. I
will begin with the “diligence” prong.
1.
“Diligence”
Respondent disputes Sosa-Jimenez’s “diligence” in pursuing his § 2255 Motion.
See Muhammad, 735 F.3d at 815 (identifying the two prongs of an “equitable tolling”
claim as “extraordinary circumstances” and “diligence”). As the Eighth Circuit Court
of Appeals has explained,
“The diligence required for equitable tolling purposes is
‘reasonable diligence’ not ‘maximum feasible diligence.’”
Holland, 130 S. Ct. at 2565 (internal citations and quotation
marks omitted). In Holland, the Supreme Court decided the
habeas petitioner had acted with reasonable diligence when he
wrote his attorney numerous letters requesting information
and providing direction; repeatedly contacted state courts,
state court clerks, and the state bar association in an attempt
to have his attorney removed from the case; and prepared his
own habeas petition and filed it on the very day he discovered
he was out of time. Id.
This court has found a section 2255 movant
demonstrated diligence when he hired counsel well ahead of
the deadline, “did everything in [his] power to stay abreast of
9
the status of his case,” provided original documents to his
attorney to assist with the motion, filed a complaint with the
state bar, and filed motions with the district court seeking an
extension of time and the return of documents submitted to
the attorney. Martin, 408 F.3d at 1095.
Muhammad, 735 F.3d at 816-17; accord Anjulo-Lopez v. United States, 541 F.3d 814,
818 (8th Cir. 2008) (“‘Due diligence therefore does not require a prisoner to undertake
repeated exercises in futility or to exhaust every imaginable option.’ Aron v. United
States, 291 F.3d 708, 712 (11th Cir. 2002). But, it does at least require that a prisoner
make reasonable efforts to discover the facts supporting his claims. Id.” (emphasis in
the original)).
In Muhammad, the court concluded that the prisoner had not acted diligently,
because he did nothing to monitor the status of his case, but simply assumed
“inexplicably” that his attorney’s failure to respond to his inquiries meant that the
attorney “was working on his case.” Id. at 817. The court contrasted that conduct with
another prisoner’s attempts to contact the court to determine if his attorney had filed his
§ 2255 Motion, which the court described as “an action that certainly would fall under
‘reasonable diligence’ in th[at] case.” Id. (citing Anjulo–Lopez, 541 F.3d at 819). The
court noted that, even after learning of his deadline, the prisoner in Muhammad did not
file his § 2255 Motion “immediately” and that the time for filing expired in the interim
between his learning of the deadline and his submission of the motion. Id.; see also
Deroo v. United States, 709 F.3d 1242, 1246 (8th Cir. 2013) (holding that a prisoner had
failed to demonstrate “diligence” for purposes of equitable tolling for the same reason
that he had failed to show “diligence” to invoke the statute of limitations under
§ 2255(f)(4), where he had waited several years before pursuing expungement of his
disciplinary actions); Anjulo-Lopez, 541 F.3d at 818-19 (finding that the prisoner had not
used reasonable efforts to discover the facts underlying his claim, so he had not acted
10
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, the parties dispute whether Sosa-Jimenez requested that his trial counsel
file a notice of appeal on his behalf. However, on a motion for summary judgment, I
must view the facts in the light most favorable to Sosa-Jimenez. See Torgerson, 643
F.3d at 1042–43. Sosa-Jimenez avers in his affidavit that his attorney told him at the
time of sentencing that he would file an appeal. He further swears that he wrote his
attorney “many times” about the status of his appeal but “never heard anything.”
Petitioner’s Aff. at ¶ 5. Sosa-Jimenez’s affidavit points to nothing else that he did while
in prison to verify that his appeal had been filed. He could have easily inquired with the
court. Nothing prohibited him from making reasonable inquiries, yet there is no evidence
that Sosa-Jimenez did anything at all. Sosa-Jimenez is exactly like the petitioner in
Muhammad, who “inexplicably” assumed that his attorney’s failure to respond to his
inquiries meant that the attorney “was working on his case.” Muhammad, 735 F.3d at
817; see also Anjulo-Lopez, 541 F.3d at 817 (recognizing the fact that an appeal was not
filed is a matter of public record that could have been discovered by “a duly diligent
person.”). Sosa-Jimenez reasonably should have known, well before the expiration of
the one-year limitations deadline, that no appeal had been filed. Due diligence requires
that a petitioner actually do something. Sosa-Jimenez has not demonstrated that he did
anything that would constitute due diligence.
2.
“Extraordinary circumstances”
As the Eighth Circuit Court of Appeals has also explained,
An attorney’s negligence or mistake is not generally an
extraordinary circumstance, however “serious attorney
misconduct, as opposed to mere negligence, ‘may warrant
equitable tolling.’” Martin, 408 F.3d at 1093 (quoting Beery
11
v. Ault, 312 F.3d 948, 952 (8th Cir. 2002)). For example, the
Supreme Court remanded for a lower court to make an
extraordinary-circumstances determination where the
attorney “failed to file [the client’s] federal petition on time
despite [the client’s] many letters that repeatedly emphasized
the importance of his doing so,” “apparently did not do the
research necessary to find out the proper filing date,” “failed
to inform [the client] in a timely manner about the crucial fact
that the Florida Supreme Court had decided his case,” and
“failed to communicate with his client over a period of
years.” Holland, 130 S. Ct. at 2564.
Comparatively, we have found extraordinary
circumstances in a situation where the movant’s attorney
“consistently lied to [the movant] and his wife about the filing
deadline; repeatedly lied to [the movant] and his wife about
the status of [the movant’s] case; refused to communicate with
[the movant] or his family; neglected to file any documents,
belated or not, on [the movant’s] behalf; and failed to return
any of [the movant’s] paperwork to him despite repeated
requests and then demands.” Martin, 408 F.3d at 1095.
Muhammad, 735 F.3d at 816.
The court in Muhammad concluded that the petitioner in that case had not alleged
circumstances that came close to those in Holland or Martin, because, despite the
attorney’s alleged initial statement that she would file a § 2255 motion for the petitioner,
the attorney then quit communicating with the petitioner; the attorney did not lie to the
petitioner about the deadlines for filing his motion, or repeatedly tell him that she would
file the motion; the attorney did not fail to communicate critical information about the
petitioner’s case; and the attorney did not withhold from the petitioner necessary
paperwork to prepare the motion. Id. Furthermore, while the court did not “condone”
the attorney’s failure to respond to the petitioner’s attempts to contact her, the court
concluded that the attorney’s actions did not amount to “extraordinary circumstances.”
Id.
12
Here, Sosa-Jimenez has failed to generate a genuine issue of material fact that
extraordinary circumstances beyond his control made it impossible for him to file his §
2255 motion on time. Again, viewing the facts in the light most favorable to SosaJimenez, see Torgerson, 643 F.3d at 1042–43, Sosa-Jimenez has not established
egregious attorney misconduct even close to that discussed in Muhammed, Holland,or
Martin. In his affidavit, Sosa-Jimenez alleges that his counsel told him, at the time of
his sentencing, that he would file his notice of appeal. He further swears that he wrote
his attorney “many times” about the status of his appeal but “never heard anything.”
Petitioner’s Aff. at ¶ 5. This does not come close to alleging the type of egregious
attorney misconduct identified in Muhammed, Holland, or Martin that would have caused
him to delay filing his § 2255 motion for over two years. See Holland v. Florida, 560
U.S. 631, 653 (2010); Muhammad, 735 F.3d at 816; United States v. Martin, 408 F.3d
1089, 1094 (8th Cir. 2005). In particular, Sosa-Jimenez makes no allegation of deceit,
misrepresentation, or other serious misconduct on the part of his attorney that prevented
him from timely filing his § 2255 motion. Thus, Sosa-Jimenez has not demonstrated
extraordinary circumstances that prevented him from timely filing his § 2255 motion.
3.
Disposition
In summary, I conclude that, as a matter of law, Sosa-Jimenez did not act
“diligently” in filing his § 2255 motion. See Torgerson, 643 F.3d at 1042-43 (for
summary judgment to be proper, the non-movant must not only fail to generate genuine
issues of material fact, but the movant must be entitled to summary judgment as a matter
of law). I also conclude, as a matter of law, that Sosa-Jimenez has not established that
“extraordinary circumstances” of his attorney’s misconduct prevented him from filing a
timely § 2255 Motion. Because Sosa-Jimenez had not established either element of
equitable tolling, equitable tolling is not warranted in this case. Without equitable tolling,
Sosa-Jimenez’s § 2255 motion is untimely and must be denied.
13
D.
Certificate Of Appealability
Sosa-Jimenez must make a substantial showing of the denial of a constitutional
right in order to be granted a certificate of appealability in this case. See Miller-El v.
Cockrell, 537 U.S. 322 (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). “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 v. Cockrell that
“‘[w]here a district court has rejected the constitutional claims on the merits, the showing
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. at 338 (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). I determine that Sosa-Jimenez’s motion does not present questions of
substance for appellate review, and, therefore, does not make the requisite showing to
satisfy § 2253(c). See 28 U.S.C. § 2253(c)(2); FED. R. APP. P. 22(b). Accordingly,
with respect to Sosa-Jimenez’s claims, I do not grant a certificate of appealability pursuant
to 28 U.S.C. § 2253(c). Should Sosa-Jimenez wish to seek further review of his petition,
he may request a certificate of appealability from a judge of the United States Court of
Appeals for the Eighth Circuit. See Tiedman v. Benson, 122 F.3d 518, 520-22 (8th Cir.
1997).
14
III.
CONCLUSION
For the reasons discussed above, respondent’s motion for summary judgment is
granted and Sosa-Jimenez’s Motion Under 28 U.S.C. § 2255 is denied in its entirety.
This case is dismissed.
No certificate of appealability will issue for any claim or
contention in this case.
IT IS SO ORDERED.
DATED this 11th day of February, 2014.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?