TEJEDA v. UNITED STATES OF AMERICA

Filing 11

OPINION. Signed by Chief Judge Jose L. Linares on 2/7/2018. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MIKAY TEJEDA,

Civil Action No. 17-473 (JLL)

Petitioner,
v.

OPINION

IJNITED STATES OF AMERICA,
Respondent.

LINARES, Chief District Judge:

Presently before the Court is the motion of Mikay Tejeda (“Petitioner”) to vacate, set aside,
or correct his sentence brought pursuant to 28 U.S.C.

§

2255. (ECF No. 1). Following an order

from this Court, the Government filed a response to the motion. (ECF No. 5). Despite ample
opportunity (see, e.g. ECF No. 8), Petitioner failed to file a reply. For the following reasons, the
Court will dismiss Petitioner’s motion as untimely.

I. BACKGROUND

On or about May 4, 2012, a federal grand jury returned a one count indictment charging
Petitioner, Mikay Tejeda, with conspiracy to distribute and possess with intent to distribute five
kilograms or more of cocaine. (Docket No. 12-3 12 at ECF No. 38). Following a jury trial,
Petitioner was found guilty on October 1, 2013.

(See Docket No. 12-312 at ECF No. 106).

Following trial, however, two issues came to light which required the Court’s attention, resulting
in a hearing held on October 20, 2013. (See Docket No. 12-3 12 at ECF No. 152). The first issue
discussed at the hearing concerned the rough notes of a federal agent taken during an interview
with Neil Van Den Berg, a witness relevant to Petitioner’s trial. (Id. at 4). Throughout trial, when

those notes were requested, the Government stated that no such notes existed. (Id.). After trial,
however, the Government informed the Court that, after the trial verdict had been reached, the
agent involved, who had previously stated that he did not remember taking notes, found rough
notes of the interview when moving offices on October 4. 2013. (Id. at 4—5). Upon the discovery
of the notes, the Government provided them to both the Court and defense counsel. (Id. at 5-6).
The second issue which came to light at the hearing was that certain documents which had not
been entered into evidence, including the Government’s rebuttal notes, had been mixed in with the
evidence and had made it into the jury room with the jury. (Id. at 9—11). Based on these two
issues, counsel for the defense requested, and was granted. two weeks to file any motion he may
have for a mistrial or other relief based on these two issues. (Id. at 11).
Over the course of the next several weeks, the parties negotiated and eventually agreed to
a plea agreement under which Petitioner would plead guilty to a superseding infonuation charging
him with the distribution and possession with intent to distribute of five or more kilograms of
cocaine, which the parties agreed would not violate double jeopardy,1 resulting in Petitioner
receiving a sentence falling into a guidelines range between 23 and 27 with a stipulated criminal
history category of I, in return for a dismissal of the jury’s prior verdict against him. (See Docket
No. 12-312 at ECF No. 125). That agreement also contained an explicit appellate waiver in which
Petitioner agreed not to file any appeal or

§ 2255 motion challenging his sentence if he were

sentenced pursuant to the agreement. (Id. at 8-9).
On December 20, 2013, Petitioner appeared before the Court and pled guilty

pursuant to

the agreement. (Docket No. 12-312 at ECF No. 151). On May 7, 2014, Petitioner appeared before
the Court and was sentenced to a term of imprisonment of seventy eight months accompanied by

Indeed, the plea agreement contained an explicit waiver of any double jeopardy claim by Petitioner. (Sc’e Docket
No. 12-3 12 at ECf No. 125 at 8-9).
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a three year period of supervised release. (Docket No. 12-312 at ECF Nos. 131, 133). This Court
also dismissed the jury’s verdict at that time. (See Docket No. 12-312 at ECf No. 131). Petitioner
did not file an appeal. (ECF No. 1 at 2). On November 13, 2015, however, Petitioner moved for
a reduction of sentence pursuant to 1$ U.S.C.

§ 3582(c) based on a retroactive amendment to the

sentencing guidelines isstied in 2014. (Docket No. 12-3 12 at ECF No. 146). On November 16,
2015, this Court granted that motion and reduced Petitioner’s sentence to 64 months of
imprisonment. (Docket No. 12-312 at ECF No. 147).

H. DISCUSSION
A. Legal Standard

A

prisoner

in federal custody may file a motion pursuant to 28 U.S.C.

§ 2255 challenging

the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
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 a 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.
28 U.S.C.

§ 2255(a). Unless the

moving party

claims a jurisdictional defect or a Constitutional

violation, in order to merit relief the moving party must show that an error of law or fact constitutes
“a fundamental defect which inherently results in a complete miscarriage of justice, (or) an
omission inconsistent with the rudimentary demands of fair procedure.” United States v. Hors/ev,
599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424,429(1962)), cert.
denied 444 U.S. $65 (1979): see also More/li v. United States, 285 F. Supp. 2d 454,458-59 (D.N.J.
2003). Prior to ordering an answer to a

§ 2255 motion, Rule 4 of the Rules Governing Section
3

2255 Proceedings requires that the district court review a petitioner’s

§ 2255 motion and “dismiss

the motion” if it “plainly appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief.”

B. Analysis

1. An evidentiary hearing is not required
2$ U.S.C.

§ 2255(b) requires an evidentiary hearing for all motions brought pursuant to the

statute “unless the motion and files and records of the case conclusively show that the prisoner is
entitled to no relief.” 2$ U.S.C.

§ 2255(b): tjiited States

1.

Booth, 432 F.3d 542, 545 (3d Cir.

2005); United States v. Day, 969 F.2d 39, 41—42 (3d Cir. 1992). “Where the record, supplemented
by the trial judge’s personal knowledge, conclusively negates the factual predicates asserted by the
petitioner or indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is
required.” Jttdge v. United States, Docket No. 13-2896, 2015 WL 4742380, at *3 (D.N.J. Aug.
11, 2015); see also Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985);
United States v. Tuyen Qttang Pliam, 587 F. App’x 6, $ (3d Cir. 2014); Booth, 432 F.3d at 546.
For the reasons set forth below, Petitioner’s motion is untimely and there is no basis for the
equitable tolling of the statute of limitations. As such, Petitioner is not entitled to relief as a matter
of law, as his motion is time-barred and no evidentiary hearing is necessary for the resolution of
his motion.

2. Petitioner’s

§ 2255 is

untimely and there is no basis for equitable tolling

In their response to Petitioner’s motion, the Government argues that Petitioner’s motion is
time barred and should be dismissed as such. Motions brought pursuant to 28 U.S.C.

4

§ 2255 are

subject to a one year statute of limitations which runs from the latest of the following events: the
date on which the conviction becomes final, the date on which an impediment to making the
motion is removed, the date on which the right asserted was initially recognized by the Supreme
Court if Petitioner’s claim is based on a newly recognized right made retroactively applicable to
cases on collateral review, or the date on which the facts supporting the claim could first have been
discovered through due diligence. 28 U.S.C.

§ 2255(f(l)—(4). Where the statute of limitations

runs from the date on which a petitioner’s conviction becomes final and the petitioner did not file
a direct appeal, the conviction is considered final on “the date on which the time for filing

.

.

.

an

appeal expired.” Kapralv. United States, 166 F. 3d 565, 577 (3d Cir. 1999); see also United States
v. Johnson, 590 F. App’x 176, 177 (3d Cir. 2014). A criminal defendant is required by the court
rules to file his notice of appeal within fourteen days of the date of his sentencing. Fed. R. App.
P. 4(b)(l)(A)(i); Johnson, 590 F. App’x at 177.
This Court sentenced Petitioner on May 7, 2014. Petitioner did not file a direct appeal, and
his conviction therefore became final fourteen days later on May 21, 2014. See Johnson, 590 F.
App’x at 177. Absent equitable tolling, Petitioner’s one year statute of limitations had therefore
run one year later on May 21, 2015. 28 U.S.C.

§ 2255(0. Petitioner did not file his current motion

to vacate until January 13, 2017, (see ECF No. 1 at 14), approximately twenty months afier the
statute had run.

Petitioner’s motion would therefore be time-barred without some form of

equitable tolling or an alternative start date for the running of the statute of limitations.
In his petition, Petitioner presents two potential arguments in favor of his petition being
found timely

—

first, that the Court should consider his one year limitations period to run not from

his original sentence, but from the date of his sentence reduction pursuant to 1$ U.S.C.

§

3582(c)(2); and second, that the Brady violation he is attempting to raise should entitle him to the

5

benefit of equitable tolling or an alternative running date for the statute of limitations. (See ECF
No. 1 at 12). Tut-ning first to Petitioner’s

§ 3582(c) argument, Petitioner is mistaken. Although §

35$2(c)(2) permits the Court to reduce a movant’s sentence based on a retroactive change to the
United States Sentencing Guideline,
that a sentence.

.

.

can.

.

.

be.

.

.

§ 3582(b) specifically states that “[n]otwithstanding the fact

modified pursuant to the provisions of[18 U.S.C.

§ 3522(c),] a

judgment of conviction that includes such a sentence constitutes a final judgment for all other
purposes.” 18 U.S.C.

§ 35$2(b)(l). Courts have thus long held that § 3582(c)(2) reductions have

no effect on the finality of a movant’s sentence for the purposes of determining the timeliness of a

§ 2255 motion, and that a reduction in sentence under § 3582(c)(2) therefore does not affect the
running of the

§ 2255 limitations period in any way. See, e.g., Abbott v. United States, No. 98-

1449, 1998 WL 229652, at *2..3 (E.D. Pa. Apr. 29, 1998); see also United States v. Sander, 247
f.3d 139, 142-43 (4th Cir. 2001) (holding that
sentence pursuant to

§ 3582(b) makes it clear that a modification of

§ 3582(c) does not affect the finality of a criminal judgment and does not

alter or toll the running of the limitations period for

§ 2255 motions); United States v. Schwartz.

274 f.3d 1220, 1224 (9th Cir. 2001). Because a sentence reduction under

§ 3582(c) does not affect

the finality of Petitioner’s judgment of conviction, Petitioner’s sentencing reduction does not affect
the running of the

§ 2255 statute of limitations in any way and thus does not provide an avenue for

Petitioner’s claims to avoid the applicable time bar. Petitioner’s first argument is thus without
merit.
In his second argument, Petitioner contends that the alleged Brath’ violation he is
attempting to raise should provide him with either equitable tolling or a later start date for the
running of the

§ 2255 limitations period. While a Brady claim may establish an alternate start date

for the running of the statute of limitations or a basis for equitable tolling insomuch as a Brac/v

6

claim either is based on newly discovered evidence or arises because the Government placed an
unconstitutional impediment in the way of the Petitioner bringing his claim by failing to disclose
the alleged Brady material, see, e.g., Munchinski v. Wilson, 694 f.3d 308, 327-28 (3d Cir. 2012),
Petitioner does not become entitled to a new start date merely because he asserts that there has
been a Brady violation. The Petitioner must instead show that he is entitled to a later start date
based on a Government created impediment or new evidence by identifying the alleged Brady
material he has been denied and establishing that it either could not have been acquired in a timely
fashion through due diligence or that he was actively prevented from acquiring the material until
some point within one year of the date on which he filed his

§ 2255 motion. Id.; see also Rinaldi

v. Gillis, 248 F. App’x 371, 378 (3d Cir. 2007).
Here, Petitioner asserts that he was denied Brady material because certain trial witnesses
including “cooperating witnesses and co-defendants
and he was

not

.

.

.

were found to be untruthful under oath,”

informed of this until after his trial and sttbsequent plea.2 (ECF No. 1 at 4).

Petitioner otherwise fails to state which witnesses were allegedly found to have been “untruthful”
under oath, in what manner or proceeding this “untruthful” finding occurred, or how the
Government prevented him from discovering the information in question. Indeed, in his motion,
Petitioner specifically states that his “attorney was privy to [this] exculpatory information” and
“failed to utilize this information during plea negotiations.” (ECF No. 1 at 5). Petitioner has thus
failed to identify the specific Brady material he was denied as he has not identified which witnesses
were “untruthful” or where this “untruthful” finding was made, and in any event directly alleges

2

Because Petitioner states that the “untruthful” witnesses in question were cooperating witnesses and co-defendants,
it does not appear that his claim arises out of the issue with the task force officer’s rough notes discussed above. To
the extent the rough notes were meant to form the basis of this claim, Petitioner had those notes, and knew of the
failure to disclose them, months before his sentencing, and any claim based on those notes would therefore run from
the date his sentence became final as no Government created impediment remained which would have prevented
the raising of those claims at the time that he was sentenced.

7

that the information could have been discovered with reasonable diligence prior to his guilty plea
insomuch as he states that his lawyer possessed the alleged Brady material prior to his guilty plea.
Petitioner thus fails to show that his alleged Brady claim in any way warrants a later start date of
the running of the limitations period, and his current motion is clearly time barred absent some
basis for equitable tolling. Mttnchinski, 694 F.3d at 327-28; Rinaldi, 248 F. App’x at 378.
Although the

§ 2255 limitations period is subject to equitable tolling under the appropriate

circumstances, such tolling “is a remedy which should be invoked ‘only sparingly.” United States
v. Bass, 26$ F. App’x 196, 199 (3d Cir. 200$) (quoting United States

Midglev, 142 F.3d 174,

179 (3d Cir. 199$)). A petitioner may only receive the benefit of equitable tolling where he shows
“(1) that he faced ‘extraordinary circumstances that stood in the way of timely filing,’ and (2) that
he exercised reasonable diligence.” Johnson, 590 F. App’x at 179 (quoting Pabon v. Mahanoy,
654 F.3d 385, 399 (3d Cir. 2011)). Mere excusable neglect is insufficient to warrant tolling of the
statute of limitations. United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013).
The only argument for equitable tolling Petitioner presents is his Brady claim that certain
unspecified witnesses at his trial were found to be untruthful under oath. As discussed above,
Petitioner fails to identify what Brady material specifically he was denied, nor shows that he could
not have discovered it prior to his sentencing. Indeed, he directly asserts that his lawyer possessed
this information prior to his guilty plea. As such, Petitioner has failed to show any extraordinary
circumstances warranting equitable tolling. As Petitioner has not shown that he is entitled to
equitable tolling, and because the Court perceives no basis for the tolling of the limitations period
under these circumstances, Petitioner’s

§ 2255 motion is clearly time barred, and will be dismissed

as such.

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III. CERTIFICATE OF APPEALABILITY

Pursuant to 2$ U.S.C. §2253(c), a petitioner may not appeal from a final order in a
proceeding under § 2255 unless he has “made a substantial showing of the denial of a constitutional
right.” “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude that
the issues presented here are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). As Petitioner’s motion is clearly time barred and jurists of
reason could not disagree with this Court’s ruling that Petitioner has failed to establish a basis for
equitable tolling, no certificate of appealability shall issue.

IV. CONCLUSION

For the reasons stated above, this Court will dismiss Petitioner’s

§

2255 motion with

prejudice as time-barred, and will deny Petitioner a certificate of appealability. An appropriate
order follows this opinion.

Date: February 20l $

JOSE

United States District Court

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