MENA v. UNITED STATES OF AMERICA

Filing 6

OPINION. Signed by Judge Stanley R. Chesler on 6/3/2013. (nr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
FRANCISCO MENA,
:
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
_________________________________________ :

Civ. No. 13-1508 SRC

OPINION

STANLEY R. CHESLER, U.S.D.J.
I.

INTRODUCTION

Petitioner is a federal prisoner proceeding pro se with a motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner pled guilty to one count of
receiving stolen goods in interstate commerce and one count of producing/trafficking in a
counterfeit device – unlawful use of an access device. Petitioner received a sentence of sixty
months imprisonment. For the reasons that follow, it appears from review of the motion that it
may be time-barred pursuant to 28 U.S.C. § 2255(f). Accordingly, petitioner will be ordered to
show cause why his motion should not be dismissed as time-barred. 1
II.

BACKGROUND

Petitioner pled guilty and was sentenced on March 10, 2010. (See Dkt. No. 1 at p. 1
(“Section 2255 Motion”).) Petitioner did not appeal from the judgment and sentence. (See id. at
p. 2.) Petitioner initially filed a motion to vacate, set aside or correct his sentence on November
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Rule 4(b) of the Rules Governing Section 2255 cases states that, “[i]f it plainly appears from
the motion, any attached exhibits, and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving
party.” Furthermore, the court can raise the statute of limitations issue sua sponte. See United
States v. Bendolph, 409 F.3d 155, 165 n. 15, 168 (3d Cir. 2005) (en banc) (stating that courts
possess the power to sua sponte raise the statute of limitations issue in a § 2255 proceeding).
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1, 2012. 2 (See D.N.J. Civ. No. 12-7269, Dkt. 1 at p. 12.) After being advised of his rights
pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), petitioner requested that his
motion to vacate, set aside or correct his sentence be withdrawn so that he could file a complete
motion. (See id. Dkt. No. 7.) The Court granted petitioner’s request on February 20, 2013, and
his motion was withdrawn. (See id. Dkt. No. 8.)
On March 6, 2013, petitioner re-filed the instant Section 2255 Motion. (See Section 2255
Motion at p. 12.) The motion raises four claims: (1) ineffective assistance of counsel; (2)
prosecutorial misconduct; (3) actual innocence; and (4) United States Code Title 18 is
unconstitutional. (See id. at p. 4-8.) After being re-advised of his rights under Miller, petitioner
indicated that he wished to proceed on the instant Section 2255 Motion. (See Dkt. No. 3.)
Subsequently, petitioner filed an application for the production of court documents and for an
evidentiary hearing. (See Dkt. Nos. 4 & 5.)
Petitioner raises several ineffective assistance of counsel claims. He contends that
counsel coerced him to plead guilty. He also argues that counsel failed to explain that petitioner
was losing several rights by pleading guilty. He further contends that counsel failed to
investigate his case among other ineffective assistance of counsel arguments. (See Dkt. No. 1 at
p.4.) With respect to his prosecutorial misconduct claim, petitioner asserts that “[t]he
government allowed false statements about defendant’s mother identifying a snapshot as her son
to coerce and threaten defendant to plead guilty.” (Id. at p. 6.)
III.

STATUTE OF LIMITATIONS ANALYSIS

Section 2255(a) provides that:
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Pursuant to the prisoner “mailbox rule,” petitioner’s filings are deemed filed on the date he
delivered them to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 270-271
(1988); see also Pabon v. Mahoney, 654 F.3d 385, 391 n. 8 (3d Cir. 2011) (citing Burns v.
Mahoney, 134 F.3d 109, 113 (3d Cir. 1998)).
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A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
The statute of limitations period for petitioner’s Section 2255 Motion is set forth in 28 U.S.C. §
2255(f), which states as follows:
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of –
the date on which the judgment of conviction becomes
final;
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;
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
the date on which the facts supporting the claims or
claims presented could have been discovered through the
exercise of due diligence.
A judgment of conviction becomes final under § 2255 on the later of (1) the date on
which the Supreme Court affirms the conviction and sentence on the merits or denies the
defendant’s timely filed petition for certiorari, or (2) the date on which the defendant’s time for
filing a timely petition for certiorari expires. See Kapral v. United States, 166 F.3d 565, 577 (3d
Cir. 1999). Where a defendant does not pursue a timely appeal to the court of appeals, his
conviction becomes final, and the statute of limitations begins to run on the date on which the
time for filing such an appeal expired. See id.

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In this case, petitioner did not file an appeal to the United States Court of Appeals for the
Third Circuit. His judgment of conviction became final for purposes of § 2255, sixty days after
judgment, or on May 9, 2010. See FED. R. APP. P. 4(a)(1)(B)(i) (“[T]he notice of appeal may be
filed by any party within sixty days after entry of the judgment or order appealed from if one of
the parties is the United States.”). Therefore, his statute of limitations ran out one-year
thereafter, or on May 9, 2011. Accordingly, 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.
Petitioner’s Section 2255 Motion does not implicate 2255(f)(2) or (3). Furthermore, it
does not appear that Section 2255(f)(4) makes the instant motion timely. As previously stated,
Section 2255(f)(4) provides for the tolling of the one-year statute of limitations period until “the
date on which the facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.” The claims raised by petitioner first challenge the
effectiveness of his counsel and the actions of the prosecutors. As to both of these claims,
petitioner could have discovered them through due diligence at or around when judgment was
entered on March 10, 2010, at the latest. See Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004)
(addressing 28 U.S.C. § 2244(d)(1)(D) and stating that the one-year statute of limitations
commences when the factual predicate of the claim could have been discovered through the
exercise of due diligence, not when it was actually discovered). Petitioner states that his counsel
denied his right to appeal. However, plaintiff indicates that he was told by his counsel on March
20, 2010 (well within the sixty-day time to appeal), that he would not be filing an appeal on
petitioner’s behalf. Moreover, there is nothing in the Section 2255 Motion to indicate that

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petitioner’s actual innocence claim relies on facts that could not have been discovered at or
around the time of judgment through the exercise of due diligence. Similarly, Section 2255(f)(4)
does not toll the statute of limitations for petitioner’s claim that Title 18 of the United States
Code is unconstitutional.
Before this Court dismisses the action as time-barred, petitioner will be given an
opportunity to address the issue of the timeliness of his Section 2255 Motion. See Bendolph, 409
F.3d at 165 n. 15 (“[C]ourts should give notice that a limitations problem may exist, as well as
provide an opportunity for a habeas movant or petitioner to respond.”).
Petitioner may be able to overcome the time bar if he can show a basis for equitable
tolling. The Supreme Court has stated that, “[g]enerally, a litigant seeking equitable tolling [of
the AEDPA statute of limitations] bears the burden of establishing two elements: (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also United States v. Bass, 268 Fed.
Appx. 196, 199 (3d Cir. 2008). “Equitable tolling is a remedy which should be involved ‘only
sparingly.’” Id. (quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (quoting
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990))).
With respect to the diligence that is necessary for equitable tolling, the Third Circuit has
stated that:
The diligence required for equitable tolling purposes is reasonable
diligence, not maximum, extreme, or exceptional diligence.
Holland [v. Florida], 130 S. Ct. [2549,] at 2565 [(2010)]. “This
obligation does not pertain solely to the filing of the federal habeas
petition, rather it is an obligation that exists during the period
appellant is exhausting state court remedies as well.” LaCava v.
Kyler, 398 F.3d 271, 277 (3d Cir. 2005) . . . . The fact that a
petitioner is proceeding pro se does not insulate him from the
“reasonable diligence” inquiry and his lack of legal knowledge or

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legal training does not alone justify equitable tolling. See Brown v.
Shannon, 322 F.3d 768, 774 (3d Cir. 2003).
Ross v. Varano, 712 F.3d 784 (3d Cir. 2013). Extraordinary circumstances may be found where
(1) the petitioner has been actively misled; (2) the petitioner has in some extraordinary way been
prevented from asserting his rights; or (3) where the petitioner has timely asserted his rights in
the wrong forum. See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing Jones v. Morton,
195 F.3d 153, 159 (3d Cir. 1999)). However, “[i]n non-capital cases, attorney error,
miscalculation, inadequate research, or other mistakes have not been found to rise to the
‘extraordinary’ circumstances required for equitable tolling.” Id. (citations omitted). In his
response to the order to show cause, Petitioner can attempt to show that he is entitled to equitable
tolling, thereby making his Section 2255 Motion timely.
IV.

APPLICATIONS FOR COURT DOCUMENTS AND EVIDENTIARY
HEARING

As previously mentioned, petitioner also filed an application for court documents and for
an evidentiary hearing. (See Dkt. Nos. 4 & 5.) In light of this opinion and because neither
application implicates the statute of limitations issue for which petitioner is being ordered to
show cause, both applications will be denied without prejudice.
V.

CONCLUSION

Because the Court finds that petitioner’s Section 2255 Motion may be subject to
dismissal due to its untimeliness, the Court will order petitioner to show cause why his petition
should not be dismissed as untimely. An appropriate order follows.
s/Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
DATED: June 3, 2013

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