MENA v. UNITED STATES OF AMERICA

Filing 19

MEMORANDUM OPINION AND ORDER REOPENING CASE; denying motion to Appeal Court's Decision, ECF No. 16; denying as moot motion to Supplement Evidence, ECF No. 17; closing case. Signed by Judge Stanley R. Chesler on 3/11/2014. (nr, )

NOT FOR PUBLICATION

CLOSED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
FRANCISCO MENA,
:
Civil Action No. 13-1508 (SRC)
Petitioner,
:
v.
:
MEMORANDUM OPINION
UNITED STATES OF AMERICA,
:
AND ORDER
Respondent.
____________________________________:
CHESLER, District Judge
On December 18, 2006, Petitioner, a federal prisoner, pled guilty to receiving stolen
goods and to unlawful use of an access device. See ECF No. 1, at 1. He was sentenced on
March 10, 2010, and did not file a direct appeal. See id. at 1 and 2. On November 1, 2012, he
filed a motion to vacate, set aside or correct his sentence (“Initial Motion”), which was docketed
as Civil Action No. 12-7269, before the undersigned. See Mena v. USA, Civ. Action No. 127269 (SRC), ECF No. 1, at 12; see also Houston v. Lack, 487 U.S. 266, 270-271 (1988)
(prisoner’s “mailbox rule”). Being advised of his rights under United States v. Miller, 197 F.3d
644 (3d Cir. 1999), he sought withdrawal of his Initial Motion in order to file an all-inclusive
motion (“All-inclusive Motion”). See Mena, Civ. Action No. 12-7269, ECF No. 7. The Court
granted that request on February 20, 2013, see id. ECF No. 8, and the All-inclusive Motion was
filed on March 6, 2013, giving rise to the instant matter. See ECF No. 1, at 12.
In reviewing the instant motion, the Court concluded that it appeared untimely and that it
was silent as to any basis for equitable tolling. Specifically, the Court held, in an Opinion dated
June 3, 2013: “even if this Court were to use the filing date of petitioner’s first § 2255 motion

that he filed in Civ. No. 12-7269 (November 1, 2012) for statute of limitations purposes, the
motion was still filed more than one-year beyond when the statute of limitations period ran out in
May 2011.” See ECF Nos. 6, at 4. Based on this holding, the Court directed Petitioner to show
cause as to why his § 2255 challenges should not be dismissed as untimely. See ECF Nos. 6 and
7; see also United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc) (holding that a
habeas petition should not be dismissed as untimely without a notice and an opportunity to
respond).
Petitioner responded to the Order to Show Cause, arguing that he could overcome the
statute of limitations by invoking the actual innocence exception. See ECF Nos. 9 to 11.
Specifically, Petitioner relied on affidavits from his mother and ex-girlfriend as new evidence
supporting his actual innocence claim.
In an Opinion dated August 8, 2013, this Court examined Petitioner’s legal and factual
assertions, as well as his supporting affidavits, in light of the factors detailed in the Supreme
Court’s then-recent decision of McQuiggin v. Perkins, __ U.S. __, 133 S. Ct. 1924, 1928 (2013).
Noting that “[u]nexplained delay in presenting new evidence bears on the determination whether
the petitioner has made the requisite showing” of actual innocence, this Court rejected
Petitioner’s claim of actual innocence because Petitioner “waited over three years after his
judgment, and over two years after the statute of limitations expired to obtain [the] affidavits,”
and Petitioner did not explain “why he could not have obtained the information from these
witnesses” sooner. ECF No. 11, at 5.
The Court further concluded that no equitable tolling was warranted. See ECF No. 11, at
6. While Petitioner argued that he was entitled to equitable tolling based upon his counsel’s
ineffectiveness, the Court rejected this argument, holding that Petitioner failed to show that

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counsel error prevented him from filing his motion in a timely fashion. See id. ECF No. 11, at 9.
Thus, this Court dismissed Petitioner’s § 2255 challenges as untimely by an Order dated August
8, 2013 (“August 8, 2013, Order”). See id. ECF No. 12.
On October 9, 2013, Petitioner made two submissions with the Court of Appeals, one
titled “Motion to Appeal District Court’s Decision” and another “Motion to Supplement
Evidence.” See id. ECF No. 15-2. The Court of Appeals forwarded both to this Court with a
recommendation “to treat as a Notice of Appeal [as] Motion to File Appeal Out of Time.” See
id.
Federal Rule 4 of Appellate Procedure governs motions for appeal out of time. The rule
provides, in relevant part:
(a)

Appeal in a Civil Case.
(1)
Time for Filing a Notice of Appeal.
(A)
In a civil case, . . . the notice of appeal required by Rule 3
must be filed with the district clerk within 30 days after
entry of the . . . order appealed from. . . .
(5)

Motion for Extension of Time.
(A)
The district court may extend the time to file a notice of
appeal if:
(i)
a party so moves no later than 30 days after the time
prescribed by this Rule 4(a) expires; and
(ii)
. . . that party shows excusable neglect or good
cause.

Fed. R. App. P. 4(a)(1) and (5).
Here, under Fed. R. App. P. 4(a)(1), Petitioner’s time to file his notice of appeal expired
on September 6, 2013. Thus, his “Motion to Appeal District Court’s Decision” (“Extension of
Time Motion”) had to be filed on or prior to October 5, 2013. See Fed. R. App. P. 4(a)(5). Since
it was filed on October 9, 2013, it will be dismissed as untimely.

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Moreover, even the Extension of Time Motion had been timely, it would be denied for
failure to show excusable neglect. 1 To qualify for extension of time under the excusable neglect
component of Fed. R. App. P. 4(a)(5)(ii), a litigant must assert facts meeting the considerations
stated in Ragguette v. Premier Wines & Spirits, 691 F.3d 315, 324-26 (3d Cir. 2012) (applying
Pioneer Investment Serv. Co. v. Brunswick Assoc. Limited Partnership, 507 U.S. 380 (1993),
and Consol. Freightways Corp. of Del. v. Larson, 827 F.2d 916 (3d Cir. 1987)). 2 Here,
Petitioner’s submissions do not implicate a single Ragguette factor; rather, these submissions
reiterate the actual innocence petition that this Court already dismissed under McQuiggin, as
discussed herein. 3
Lastly, in his Extension of Time Motion, Petitioner relies on 28 U.S.C. § 2241’s “safety
value” to excuse his untimely filing. That reliance is misplaced. A federal prisoner’s challenge
to the legality of his conviction or sentence may, generally, be litigated only through a § 2255
1

The “good cause” component is not at issue here. See Ragguette v. Premier Wines & Spirits,
691 F.3d 315, 324 (3d Cir. 2012) (citing, inter alia, Consol. Freightways Corp. of Del. v. Larson,
827 F.2d 916, 918 n.3 (3d Cir. 1987) (stating “that ‘good cause’ is a basis for extending time to
file appeal ‘only if the request is made within the original 30 day period for taking the appeal’
and that ‘any request for extension filed after the original period has run is governed by the
excusable neglect standard’”) (original brackets removed)).
2

The Ragguette Court provided the following guidance: “We [must] determine[], inter alia, that
. . . [the litigant] was not attempting to create some sort of facile excuse to extend the time to
appeal . . . [that] this type of human error, though avoidable, was not readily foreseeable[] and
[the litigant] otherwise acted with due (if not perfect) diligence and in good faith in attempting to
comply with Rule 4(a)(5) (including, among other things, drafting the notice of appeal within
the 30-day limit, serving the notice of appeal on opposing counsel in a timely fashion, and then
expeditiously filing a motion for an extension of time).” Ragguette, 691 F.3d at 326 (citation
omitted).
3

The Court notes that Petitioner attempts to unduly capitalize on this Court’s Miller notice by
arguing that this Court implicitly excused the untimeliness of his Petition when the Court
informed Petitioner of his Miller rights. This Court’s Miller notice—which advised Petitioner
that he could withdraw his motion and file an all-inclusive one—had no relation to the timeliness
concerns that were raised in and addressed upon Petitioner’s response to the Order to Show
Cause.
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motion. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). While the safety valve
opens access to § 2241 in those rare cases where § 2255 is “inadequate or ineffective to test the
legality of . . . detention,” In re Dorsainvil, 119 F.3d 245, 249-50 (3d Cir. 1997) (quoting 28
U.S.C. § 2255(e)), § 2255 “is not inadequate or ineffective merely because . . . the one-year
statute of limitations has expired . . . .” Cradle v. Miner, 290 F.3d 536, 539 (3d Cir. 2002).
Thus, § 2241 jurisdiction becomes available only where the litigant is: (a) “being detained for
conduct that has subsequently been rendered non-criminal by an intervening Supreme Court
decision,” and (b) barred from § 2255 by the circumstances outside his control. In re Dorsainvil,
119 F.3d at 252. Here, Petitioner’s own failure to timely file his petition barred him from § 2255
review, and no intervening Supreme Court precedent rendered his conduct non-criminal. See
ECF Nos. 15 and 15-1.
IT IS, therefore, on this 11th day of March, 2014,
ORDERED the Clerk shall reopen this matter by making a new and separate entry on the
docket reading, “CIVIL CASE REOPENED”; and it is further
ORDERED that the Motion to Appeal District Court’s Decision, ECF No. 16, is denied
as untimely and, in addition, substantively meritless; and it is further
ORDERED that the Motion to Supplement Evidence, ECF No. 17, is denied as moot
and, in addition, substantively meritless; 4 and it is further

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The “Motion to Supplement Evidence” re-raised, again, Petitioner’s actual innocence argument
(already dismissed under McQuiggin). In addition, while conceding that he was likely to be
removed from the United States upon release from penal confinement, Petitioner alleges in this
motion that he might suffer hypothetical prejudice by “premature deportation.” ECF No. 17, at
7. While Petitioner has due process rights to challenge his removal, he cannot affect the length
of his custodial term by expediting or delaying that removal. Accord In re Mota-Rivera, 412 F.
App’x 438, 439 (3d Cir. 2011). Thus, he cannot attack his custodial term by asserting the risk of
“premature deportation.”
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ORDERED that the Clerk shall close the file on this matter by making a new and
separate entry on the docket reading, “CIVIL CASE CLOSED”; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion and Order upon
Petitioner by regular U.S. mail.

____/s/______________________
STANLEY R. CHESLER
United States District Judge

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