SANTIAGO v. UNITED STATES OF AMERICA

Filing 7

OPINION. Signed by Judge Joseph H. Rodriguez on 12/12/2012. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________
HECTOR SANTIAGO,
:
:
Petitioner,
:
Hon. Joseph H. Rodriguez
:
v.
:
Civil Action No. 11-7427 (JHR)
:
UNITED STATES OF AMERICA,
:
:
OPINION
Respondent.
:
_______________________
:
Presently before the Court is the Petition [1] for Writ of Habeas Corpus filed by
Hector Santiago (“Santiago”), an inmate incarcerated at FCI Fairton in New Jersey, to
vacate his sentence pursuant to 28 U.S.C. § 2255 and the government’s motion to
dismiss the petition [5]. The Court has considered the written submissions of the
parties without oral argument. For the reasons expressed below, the Petition will be
dismissed.
I. Background
Hector Santiago plead guilty to a one count Information, which charged him with
a violation of 21 U.S.C. § 846 on July 9, 2008. Following sentencing, Santiago
successfully challenged his attorney as ineffective for failing to file a direct appeal under
28 U.S.C. § 2255. A direct appeal was permitted which resulted in a new sentencing
hearing for Santiago; Santiago was re-sentenced on April 21, 2010 to a term of
imprisonment of 84 months, followed by a three-year term of supervised release and a
fine.

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On August 24, 2011, Santiago filed a second Petition for a Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2241, challenging the Bureau of Prisons’ (“BOP”) decision
denying him credit towards his sentence under 18 U.S.C. § 3585(b) for the 13 months he
was on bail.1 Alternatively, Santiago argued that without credit for his time on bail, his
guilty plea was unconstitutional since he was not advised that the 13 months on bail
would not be credited toward his sentence. This Court dismissed the Petition because
the BOP did not abuse its discretion in denying Santiago’s request. Since § 2241 does
not confer this Court with jurisdiction over Santiago’s guilty plea, Santiago was given
permission to re-characterize his Petition as a motion to vacate pursuant to 28 U.S.C. §
2255.
On October 12, 2011, Santiago submitted a document stating that he wanted this
Court to reconsider the dismissal of his § 2241 challenge to the BOP’s denial of credit for
the time he spent on bail. This Court granted that motion but dismissed the claim again
because it was procedurally improper.2 Then, on November 2, 2011, Santiago filed a
motion to re-characterize the challenge as a motion to vacate under 28 U.S.C. § 2255.
That motion is now before the Court.

1

Because Santiago’s first claim sought only to reinstate his right to appeal, and did not
challenge the merits of his plea, the present petition is not a successive petition requiring leave
from the United States Court of Appeals for the Third Circuit. See In re Olabode, 325 F.3d 166,
173 (3d Cir. 2003) (a second petition under § 2255 is not abusive or successive where the first
petition merely seeks to reinstate the right to file a direct appeal.)
2

This action by the Court is what likely prompted Santiago to ask for clarification. See
Civ. No. 11-4957, Dkt. No. 10. The purpose of the reconsideration order was to procedurally
close the § 2241 petition for statistical purposes in anticipation of Santiago properly filing a §
2255 Petition. The Order did not impact the merits of Santiago’s claims which he is pursuing
here. While Santiago’s confusion is understandable, he should be assured that the merits of his
claim were not dismissed at that point.
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The Government moves to dismiss the petition for two reasons. First, the
Government argues that the Petition is untimely because it was filed beyond the one
year statute of limitations period promulgated by 28 U.S.C. § 2255(f) and Petitioner is
not entitled to have the limitations period equitably tolled. Second, and alternatively,
the Government contends that no Rule 11 violation occurred because Petitioner’s bail
placed him in a halfway house, which is not considered “official detention” and does not
qualify for sentencing credit under 28 U.S.C. §3585. As a result, Petitioner’s attorney
was not ineffective for failing to advise him that he would not receive credit or for failing
to argue to the Court that Santiago should receive credit. In addition, The Court did not
violate Rule 11 because Santiago was properly advised of his maximum sentence
exposure during the plea hearing.
II. Standards of Review
A. Statute of Limitations
A one year statute of limitations applies to claims under 28 U.S.C. § 2255(f). The
limitations period runs 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).
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The § 2255(f) statute of limitations is not jurisdictional. Holland v. Florida, 130
S. Ct. 2549, 2552 (U.S. 2010) (citing Day v. McDonough, 547 U.S. 198, 205, 213 (2006)).
When the one year statute of limitations violates principles of equity, the statute can be
equitably tolled. Id. A petitioner is only entitled to equitable tolling if he shows “(1) that
he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way.” Id. (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2010)). For
instance, equitable tolling may be applied when a petitioner has been actively misled by
the respondent or when a petitioner files a timely petition in the wrong forum. Brown v.
United States, Civ. No. 10-2784, 2011 WL 2148181, at *2 (D.N.J. May 31, 2011) (citing
Urcinoli v. Cathel, 546 F.3d 269, 272 (3d Cir. 2008)).
B. § 2255 Claim
1. Evidentiary Hearing
The Court must conduct an evidentiary hearing “unless the motion and files and
records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255. “The question of whether to order a hearing is committed to the sound
discretion of the district court.” Government of Virgin Islands v. Forte, 865 F.2d 59, 62
(3d Cir. 1989).
2. Rule 11 of the Federal Rules of Criminal Procedure
Certain omissions of the Court are not errors of the magnitude recognized under
a writ of habeas corpus. Hill v. United States, 368 U.S. 424, 428 (1962).
The failure of a trial court to ask a defendant represented by an attorney whether
he has anything to say before sentence is imposed is not of itself an error of the
character or magnitude cognizable under a writ of habeas corpus. It is an error
which is neither jurisdictional nor constitutional. It is not a fundamental defect
which inherently results in a complete miscarriage of justice, nor an omission
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inconsistent with the rudimentary demands of fair procedure. It does not present
‘exceptional circumstances where the need for the remedy afforded by the writ of
habeas corpus is apparent.’
Id. (citing Bowen v. Johnston, 306 U.S. 19, 27, 59 (1939)).3
The reasoning in Hill is applicable to formal violations of Rule 11. United States
v. Timmreck, 441 U.S. 780, 783 (1979).4 After Hill and Timmreck were decided, Rule 11
was amended to include subsection (h). Rule 11(h) provides:
(h) Harmless Error. A variance from the requirements of this rule is harmless
error if it does not affect substantial rights.
Fed. R. Crim. P. 11(h).
A § 2255 claim for a violation of Rule 11 must demonstrate an error of
constitutional magnitude and prejudice resulting from that error. United States v.
Cleary, 46 F.3d 307, 311 (3d Cir. 1995). Petitioner must show reasonable probability
that, but for the Rule 11 error, he would not have pled guilty. United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004).
3. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, a convicted defendant
must show that counsel's deficient performance caused prejudice to the defense.

3

The Petitioner in Hill filed a motion to vacate for being denied the right under
Rule 32(a) of the Federal Rules of Criminal Procedure to make a statement in his own
behalf and to present information to mitigate his punishment. Id. at 425. Since the
lower court did not affirmatively deny the Petitioner’s opportunity to speak, the Court
ruled that the violation was merely a failure to comply with the formal requirements of
the Rule. Id. at 429.
4

The Plaintiff in Timmreck was not advised of the mandatory special parole in
connection with his controlled substance charge. Id. at 782. The Court ruled that the
formal requirements of Rule 11 had been violated, but the violation was not substantial
enough to justify collateral relief. Id. at 785.
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Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, the standard contemplates a
two part inquiry; (1) whether counsel was deficient, and, if so (2) whether the petitioner
was prejudiced by the deficiency. A court evaluating counsel's performance must
determine "whether, in light of all the circumstances, the identified acts or omissions
were outside the wide range of professionally competent assistance." Id. "In making
that determination, the court should keep in mind that counsel's function, as elaborated
in prevailing professional norms, is to make the adversarial testing process work in the
particular case. At the same time, the court should recognize that counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Id.
To establish prejudice, a petitioner "must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. at 694. Here, Santiago must demonstrate a
reasonable probability that he would not have plead guilty to the charges if he knew that
his time on home confinement did not qualify for sentencing credit under § 3585(b). See
Dominguez Benitez, 542 U.S. at 83.
III. Analysis
This Court informed Santiago that the limitations period for his § 2241 motion
expired on May 13, 2011, three months before he filed the § 2241 petition. Santiago v.
Shartle, Civ. No. 11-4957, 2011 WL 4073506, at *6 n.4 (D.N.J. Sept. 13, 2011). The
Government argues that the statute of limitations for the present petition expired on
April 24, 2011. As a result, in the absence of equitable tolling, this motion is untimely.
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Id.
Santiago is not entitled to equitable tolling of the limitations period because he
did not act with requisite diligence and because he cannot demonstrate that an
impediment prevented him from filing sooner. Santiago, who began serving his
sentence on October 14, 2010, filed an administrative claim with the Bureau of Prisons
on December 13, 2010 that questioned whether he was entitled to sentencing credit for
the time he spent on house arrest. That grievance, or claim, was promptly denied on
December 15, 2010. Santiago again petitioned for a determination of his entitlement to
sentencing credit on December 22, 2010; that petition was also denied on December 30,
2010. Santiago then petitioned the Regional Office of the Bureau of Prisons on January
20, 2011; that petition was denied on April 14, 2011. Another petition was filed on May
17, 2010 and rejected on June 17, 2010. Santiago claims he acted with requisite
diligence because he was required to exhaust his administrative remedies before he
could file his Petition under § 2241, which he filed on August 25, 2010.
Santiago’s claim of administrative exhaustion is not without some force as to the
claim for credit under § 2241. “Although there is no statutory exhaustion requirement
attached to § 2241, we have consistently applied an exhaustion requirement to claims
brought under § 2241.” Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000). Santiago’s
pursuit of an answer from the Bureau of Prisons spanned numerous months and
demonstrates that he was pursuing his rights. However, diligence in pursuit of credit
does not apply to his present claim — that his attorney was ineffective for failing to
advise him that he was not entitled to the credit. Santiago knew he had a claim against
his attorney for failing to advise him of this fact well before the statute expired; his
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numerous petitions for relief had been summarily denied, with three of the four filed
grievances being denied prior to the expiration of the limitations period on April 25,
2011. Santiago knew, or should have known, that he had a claim for ineffective
assistance of counsel upon receiving the denial letters from the various administrative
levels of the Bureau of Prisons. Also, having previously, and successfully, challenged his
counsel as ineffective for failing to file a direct appeal, Santiago was familiar with the
statutory scheme of § 2255 and ostensibly the limitations period therein.
The Court concludes that Santiago’s neglect of his claims against counsel and the
Court do not justify tolling the statute of limitations.5 Likewise, Santiago’s mistaken
belief that his claim was redressable under § 2241 is insufficient to excuse his failure to
comply with the one year limitations period under § 2255. See Jones v. Morton, 195
F.3d 153160 (3d Cir. 1999). The statute of limitations will not be equitably tolled.
B. § 2255 Claim
Even if Petitioner’s § 2255 claim for an alleged violation of Rule 11 of the Federal
Rules of Criminal Procedure is timely, it still fails because a Rule 11 violation did not
occur. The Court will not conduct an evidentiary hearing because Santiago’s claim is
defective as a matter of law.

5

At best, Santiago’s mistaken belief that his claim was redressable under §2241 may
constitute excusable neglect. This, however, is insufficient to trigger the extraordinary remedy of
equitable tolling. “A lack of familiarity with law is not sufficient, U.S. v. Kimbrew, No. 07–163,
2010 WL 2773149 at *2 (July 13, 2010), nor is attorney malfeasance alone, Schlueter v. Varner,
384 F.3d 69, 77 (3d Cir.2004). Finally, an untimely petitioner must show that they were
nevertheless diligent—“excusable neglect is not sufficient.” Id.” United States v. Smith, 2011
WL 5549095 at *2 (M.D.Pa. November 15, 2011). Thus, while Petitioner may show diligence in
pursuit of his claim for credit under §2241, that diligence in inapplicable to his pursuit for redress
under §2255.
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Santiago’s allegations are somewhat muddled, as he oscillates between accusing
the Court and/or his counsel of failing to advise him that he would not receive credit for
the time he spent on house arrest.6 Both allegations appear to allege that this Court and
counsel violated Rule 11 of the Federal Rules of Criminal Procedure by failing to inform
him that he would not receive credit against his sentence for the time he spent on bail.
First, counsel was not deficient in failing to advise Santiago that he would not
receive credit for his time on bail, as home confinement does not constitute “official
detention” so as to be eligible for sentencing credit under § 3585. Reno v. Koray, 515
U.S. 50(1995). Likewise, counsel was not ineffective for failing to argue for credit, as
Santiago was not entitled to such and the Court has no authority to make such an award.
See Ruggiano v. Reish, 307 F.3d 121, 132 (3d Cir. 2002) (“The sentencing court has no
authority to award ‘credit’ as that term is used in § 3585 (b).”).
Even if one could argue that counsel was ineffective, Santiago cannot
demonstrate prejudice as the Court informed him of the maximum sentencing exposure
associated with the charges to which he plead guilty. In addition, even if counsel made
an assurance of credit, “[i]t has long been settled as a general rule that where an
adequate guilty plea hearing has been conducted, an erroneous prediction or assurance
by defense counsel regarding the likely sentence does not constitute grounds for
invalidating a guilty plea on grounds of ineffective assistance of counsel.” Brown v.
United States, 75 F.Supp.2d 345, 354 (D.N.J. 1999). Thus, even if Santiago was under

6

Santiago was placed on house arrest with electronic monitoring on September 26, 2007
and remained on home confinement until September, 2008. During this time he was permitted
work.
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the impression that he was eligible for credit, Santiago cannot demonstrate prejudice.
Moreover, the Court made Santiago aware of the consequences of his plea during
the plea hearing. This fact vitiates Santiago’s prejudice argument as to counsel’s
performance, because Santiago was aware of the potential length of his sentence, and
also undermines his claim of a Rule 11 violation by the Court. See Adams v. United
States, 2007 WL 1544208 (May 29, 2007 D.N.J.) (Stating that the Rule 11 colloquy
“eliminates any arguable prejudice from an earlier estimate by counsel”) (citations
omitted). Under Rule 11, the Court must ensure that the Defendant knows the possible
consequences of his plea. Woodward v. United States, 426 F.2d 959, 962-963 (3d Cir.
1970). Santiago was made aware of the possible consequences of his plea on July 9,
2008, when he pled guilty to conspiracy to distribute and possess with intent to
distribute a mixture and substance containing a detectable amount of heroin. At that
time, this Court informed Santiago that he could be subject to a maximum of 20 years in
prison and a maximum fine equal to the greatest of one million dollars or twice the gross
profits or other proceeds received by him. Transcript of Guilty Plea at 9, United States v.
Santiago (2008) (No. 08-478).
Although the record does not indicate a warning to Santiago that his time spent
on bail rendered him ineligible for credit against the imposed sentence, this alone does
not constitute a Rule 11 violation because Santiago was informed of the consequences of
his plea. See id. The Court asked Santiago if he “under[stood] that a Court is not bound
to accept any of the agreements or stipulations entered into between the parties?” Id. at
p. 12. Santiago replied that he understood. Id. A review of the transcript of Santiago’s
plea demonstrates that Santiago was properly advised by the Court — and by the
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Government— of the consequences of his plea and the maximum length of his potential
sentence. As a result, cannot prove a violation of Rule 11, or that he was prejudiced by
his counsel’s performance in any way. Petitioner’s claim, even if timely, is without merit
and will be dismissed. See Dominguez Benitez, 542 U.S. at 83.
IV. Conclusion
For the reasons set forth above, the government’s motion to dismiss is granted;
Santiago’s petition under 28 U.S.C. § 2255 is dismissed. The appropriate order shall
issue.

Dated: December 12, 2012

S/ Joseph H. Rodriguez
HON. JOSEPH H. RODRIGUEZ,
United States District Judge

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