Amieva v. USA

Filing 8

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. An Order of Dismissal will be filed separately. Signed by District Judge Audrey G. Fleissig on 11/30/2016. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERNESTO AMIEVA,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:15-CV-1795 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Ernesto Amieva to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255. The motion is denied.
Background
On September 18, 2012, Movant pled guilty to possession with intent to distribute
cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(b)(1)(A). On December 20, 2012, the
Court sentenced him to 120 months’ imprisonment. Movant did not file an appeal. On the same
day he was sentenced, Movant executed a Notice of Compliance with Local Rule 12.07(A). The
Notice was signed by Movant, and it provided, “I have been fully informed of my right to appeal
the final judgment in this case, I do not wish to file a Notice of Appeal, and I have instructed by
attorney not to file a Notice of Appeal.”
Movant filed a Notice of Appeal on September 8, 2015, two years and eight months after
he was sentenced. In his request to file a late appeal before the Court of Appeals for the Eighth
Circuit, Movant claimed he instructed plea counsel to file a Notice of Appeal. He said he is now
subject to deportation as a result of his guilty plea, and he stated that counsel was ineffective for
failing to advise him of the immigration consequences of his conviction and for failing to file a

Notice of Appeal as instructed. The Court of Appeals dismissed the appeal as untimely. United
States v. Amieva, No. 15-3131 (8th Cir. Oct. 8, 2015).
In the instant motion, Movant claims that counsel was ineffective for failing to advise
him of the immigration consequences of his conviction1 and for failing to file a Notice of Appeal
as instructed. However, in his response to the Court’s show cause Order, he admits that he did
not instruct counsel to file an appeal. He requests equitable tolling on the basis that he believed
plea counsel filed a Notice of Appeal, even though he did not instruct counsel to do so, and that
his appeal was pending before the Court of Appeals. He also claims that counsel told him he
was going to be resentenced pursuant to Rule 35 of the Federal Rules of Civil Procedure. He
says when he learned he did not have a pending appeal he hired present counsel to represent him.
Discussion
Under 28 U.S.C. § 2255(f)(1), a petitioner has one year from the date the criminal
judgment became final to file a motion to vacate. An unappealed criminal judgment becomes
final for purposes of calculating the time limit for filing a motion under § 2255 when the time for
filing a direct appeal expires, ten days after the judgment is entered. Moshier v. United States,
402 F.3d 116, 118 (2nd Cir. 2005); Fed. R. App. Proc. 4(b)(1). The time for filing a direct
appeal in this case expired on December 30, 2012. This action was not filed until December 7,
2015, nearly three years after the limitations period expired.
Under the doctrine of equitable tolling, the limitations period may be tolled if a petitioner
can show that (1) he has been diligently pursuing his rights and (2) an extraordinary

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Although not reaching the merits of this claim, the Court notes that the guilty plea agreement
signed by Movant specifically states that nothing in the agreement "limits the rights and
authority of the United States to take any . . . immigration/deportation or administrative action
against the defendant.” It further advises that “The Government takes no position on
Defendant’s eligibility for deportation.”

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circumstance stood in his way. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling
is a flexible procedure that involves both recognition of the role of precedent and an “awareness
of the fact that specific circumstances, often hard to predict in advance, could warrant special
treatment in an appropriate case.” Id. at 649-50.
Movant has not diligently pursued his rights, nor have extraordinary circumstances
prevented him from filing a timely motion to vacate. First, the record contradicts his recent
assertion that he instructed his counsel to file a Notice of Appeal. Second, he could have easily
inquired about the status of any appeal before the § 2255 limitations period expired. Therefore,
this action is dismissed. See 28 U.S.C. § 2255 Rule 4; Day v. McDonough, 547 U.S. 198, 210
(2006).
Finally, Movant has failed to demonstrate that jurists of reason would find it debatable
whether the petition is untimely. Thus, the Court will not issue a certificate of appealability. 28
U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
An Order of Dismissal will be filed separately.
Dated this 30th day of November, 2016.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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