Alvarez-Santos v. United States of America

Filing 19

Memorandum Opinion and Order granting 4 Motion To Dismiss 3 Petitioner's Motion Under 28 U.S.C. section 2255 (CR11-4049 MWB). This action is dismissed with prejudice as untimely under 28 U.S.C. section 2255(f). Judgment shall issue accordingly and no certificate of appealability will issue. Signed by Judge Mark W Bennett on 05/07/2014. Order/NEF mailed to pro se filer. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
LORENZO ALVAREZ-SANTOS,
No. C 13-4051-MWB
(No. CR 11-4049-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 June 7, 2013, the Clerk of Court received, and on June 11, 2013, the Clerk of
Court filed petitioner Lorenzo Alvarez-Santos’s pro se Application To Proceed In District
Court Without Prepaying Fees Or Costs (IFP Application)1 (Civ. docket no. 1), dated
May 14, 2014. Alvarez-Santos attached to his IFP Application a copy of a report of his
prison account, dated May 29, 2013; his pro se Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aide, Or Correct A Sentence By A Person In Federal Custody (§ 2255
Motion), dated May 14, 2013; and a cover letter to the Clerk of Court, listing all of these
items, dated June 3, 2013. Alvarez-Santos’s § 2255 Motion seeks relief from his guilty
plea, on July 12, 2011, to one count of possessing with intent to distribute 50 grams or
more of actual (pure) methamphetamine, in violation of 21 U.S.C. § 841, and his sentence
1

I have called this Application Alvarez-Santos’s “IFP Application,” because an
application to proceed without prepayment of fees or costs is routinely described as an
application to proceed in forma pauperis.

to 135 months of imprisonment, on May 15, 2012, see Judgment (Crim. docket no. 135)
(entered May 16, 2012). Alvarez-Santos did not appeal his conviction or sentence. By
Order (Civ. docket no. 2), filed June 11, 2013, I granted Alvarez-Santos’s IFP
Application; directed the Clerk of Court to file Alvarez-Santos’s § 2255 Motion (which
was filed at Civ. docket no. 3); and directed the respondent to file an answer or response
to Alvarez-Santos’s § 2255 Motion on or before August 12, 2013.
In his pro se § 2255 Motion, Alvarez-Santos asserts the following four claims for
§ 2255 relief: (1) failure of trial counsel to raise or advise him about the “safety valve”
under U.S.S.G. § 5C1.2, when negotiating Alvarez-Santos’s plea agreement; (2) failure
of the sentencing court to reduce Alvarez-Santos’s sentence for acceptance of
responsibility, under U.S.S.G. § 3E1.1(a), although the factual allegations supporting
this claim refer to the court’s denial of a “downward variance,” despite his cooperation
and admission of responsibility; (3) error (apparently by both the court and trial counsel)
in denying a four-level reduction without which Alvarez-Santos claims he would never
have agreed to plead guilty; and (4) trial counsel’s failure to contest the lack of a fourlevel reduction during sentencing. In response to paragraph 18 of the form § 2255
Motion, which directs a petitioner to explain why his § 2255 Motion was not being filed
within one year of his judgment of conviction, Alvarez-Santos averred as follows:
Throughout this last calendar year, movant was awaiting word
on any pending appeal. This was only through the claim of
former counsel. Once contacting the Appellate Court to
inquire on any appeal status, it was gathered that movant had
no appeal motion pending. Movant submits this motion only
following the confirmation of no other post-conviction
proceeding being currently under review.
Movant’s
sentencing took place May 15, 2012.
§ 2255 Motion, ¶ 18.

2

On June 20, 2013, the respondent filed the Motion To Dismiss Petitioner’s Motion
Under 28 U.S.C. § 2255 (Civ. docket no. 4) now before me. In that Motion, the
respondent argues that the deadline for filing of Alvarez-Santos’s § 2255 Motion, under
the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2255(f), expired on May 26, 2013, one year after the
deadline for Alvarez-Santos to appeal the judgment in his case expired. The respondent
points out that Alvarez-Santos did not file his § 2255 Motion until June 3, 2013, the date
of his cover letter to the Clerk’s Office with his IFP Application and § 2255 Motion.
Consequently, the respondent asserts that Alvarez-Santos’s § 2255 Motion was seven
days late.

The respondent also asserts that Alvarez-Santos has not asserted any

explanation for waiting a full year for an appeal that was never filed before filing his
§ 2255 Motion, so that there are no circumstances justifying equitable tolling of the statute
of limitations for his § 2255 Motion. Therefore, the respondent seeks dismissal of
Alvarez-Santos’s § 2255 Motion as untimely.
By Order (Civ. docket no. 5), filed June 21, 2013, I directed Alvarez-Santos to
file, with the aid of counsel, a response to the respondent’s Motion To Dismiss on or
before July 31, 2013, and gave the respondent to and including August 16, 2013, to file
any reply brief. After extensions of time to file a response, counsel for Alvarez-Santos
filed a Report To The Court And Motion For Permission To Withdarw (Civ. docket no.
14) on November 27, 2013. In counsel’s Report And Motion, counsel stated that, after
a “thorough review of the record,” and communication with Alvarez-Santos, counsel had
concluded that Alvarez-Santos had adequate command of English to communicate with
counsel and the court without the assistance of an interpreter; that Alvarez-Santos asserted
that he prepared his pro se § 2255 Motion and placed it in the prison mailing system on
May 14, 2013, notwithstanding that his letter transmitting his § 2255 Motion and IFP
Application was dated June 3, 2013; and that, if his § 2255 Motion was not timely under
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the “mailbox rule,” that “equitable tolling” should apply, because Alvarez-Santos was
“diligent” in preparing his § 2255 Motion, because he is not well-educated and English
is not his first language. Counsel submitted an Anders Brief (Civ. docket no. 15) in
support of Alvarez-Santo’s § 2255 Motion, incidentally addressing the timeliness issue,
but requested that Alvarez-Santos be allowed to submit a pro se brief, as well.
In an Order (Civ. docket no. 16), filed on December 2, 2013, I granted counsel’s
Motion To Withdraw, gave Alvarez-Santos to and including January 11, 2014, to file a
supplemental brief in support of his resistance to respondent’s Motion To Dismiss, and
gave the respondent to and including February 1, 2014, to file any reply. Alvarez-Santos
did not file any supplemental brief, nor did the respondent file any reply.
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a pre-answer
motion to dismiss for “failure to state a claim upon which relief can be granted.” FED.
R. CIV. P. 12(b)(6).2 Although factual “plausibility” is ordinarily the central focus of
Rule 12(b)(6) motions to dismiss under the Twom-bal standard,3 various federal Circuit

2

In Moore v. United States, 173 F.3d 1131 (8th Cir. 1999), the Eighth Circuit
Court of Appeals held that the references to a “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, 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 a motion to dismiss for failure to state a claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure, rather than a motion to dismiss
for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
3

The “Twom-bal standard” is my nickname for the “plausibility” pleading
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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Courts of 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
Alvarez-Santos’s § 2255 Motion, because it is untimely, 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) in this case, I
may consider the docket in the underlying criminal case, from which Alvarez-Santos
seeks § 2255 relief, because it is “‘incorporated by reference or integral to [his] 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 it is “‘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)).
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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)).
On a § 2255 motion, I am not required to accept as true every allegation that a
petitioner makes, if it is contrary to record evidence. Cf. Blackledge v. Allison, 431 U.S.
63, 75-76 (1977) (making clear that summary dismissal pursuant to Rule 4(b) of the Rules
Governing Section 2255 Proceedings is appropriate where the allegations are vague or
conclusory, palpably incredible, or patently frivolous or false).

Thus, I am not

constrained to accept Alvarez-Santos’s assertion that he placed his § 2255 Motion in the
prison mail system on May 14, 2013, notwithstanding that he typed that date on his
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§ 2255 Motion and certificate of service, where his assertion is “palpably incredible”
and/or “patently . . . false.” Specifically, his assertion that his § 2255 Motion was mailed
on May 14, 2013, cannot stand, where his § 2255 Motion was mailed to the Clerk of
Court with his IFP Application, a report of his inmate account dated May 29, 2014, and
a cover letter, signed by Alvarez-Santos, dated June 3, 2013. Indeed, the Clerk of Court
did not receive these documents until June 7, 2013. I conclude that the earliest possible
filing date for Alvarez-Santos’s § 2255 Motion is June 3, 2013, but his deadline under
§ 2255(f) expired on May 26, 2013. Consequently, his § 2255 Motion is untimely.
This conclusion leaves only “equitable tolling” to save Alvarez-Santos’s § 2255
Motion for consideration on the merits. 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.
In Alvarez-Santos’s counsel’s Report To The Court And Motion For Permission
To Withdraw and in counsel’s Anders Brief, counsel really only addresses the “diligence”
requirement for equitable tolling. 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,
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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 no appeal had been
filed and no other action to delay the running of the statute of limitations had occurred in
his case. 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). Alvarez-Santos has not even identified the date on which he
purportedly learned, from inquiry to the Clerk of the Eighth Circuit Court of Appeals,
that no appeal had been filed on his behalf. Finally, nothing in the record suggests that
the grounds for Alvarez-Santos’s claims for § 2255 relief were unknown or unknowable
to him long before his deadline to file his § 2255 Motion expired. 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). I conclude that
Alvarez-Santos was not “diligent,” as required to take advantage of “equitable tolling.”
The nearest Alvarez-Santos and his counsel come to addressing the “extraordinary
circumstances” requirement for equitable tolling is to argue that his limited education and
the fact that English is not his native language should excuse the untimeliness of his
§ 2255 Motion. I believe that these circumstances fall well short of the “extraordinary
circumstances” required for “equitable tolling.” See Muhammad, 735 F.3d at 815.
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There is no hint that anyone—trial counsel, the Clerk of Court for the Eighth Circuit
Court of Appeals, or anyone else associated with this court or the appellate court—misled
Alvarez-Santos about the filing of an appeal or the fact that no appeal had ever been filed.
Id. at 816; see also Holland, 130 S.Ct. at 2564; Martin, 408 F.3d at 1095. Furthermore,
because I found, above, that Alvarez-Santos patently misrepresented the date that he
mailed his § 2255 Motion, and, thus, suffers from “unclean hands,” I find that it would
be particularly inappropriate to grant him any “equitable” relief from the untimeliness of
his § 2255 Motion.
Consequently, I find no basis to equitably toll Alvarez-Santos’s deadline for filing
of his § 2255 Motion, and the respondent’s Motion To Dismiss, seeking dismissal of
Alvarez-Santos’s § 2255 Motion as untimely is granted. Indeed, I conclude that AlvarezSantos has failed to make a substantial showing that any issue concerning the untimeliness
of his § 2255 Motion, including “equitable tolling,” is debatable among reasonable
jurists, that a court could resolve any such issue differently, or that any such issue
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 June 20, 2013, Motion To Dismiss Petitioner’s Motion

Under 28 U.S.C. § 2255 (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

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4.

No certificate of appealability will issue.

IT IS SO ORDERED.
DATED this 7th day of May, 2014.

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

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