Arroba v. USA

Filing 2

MEMORANDUM OF DECISION AND ORDER dismissing 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 5/21/2014. (Pro se litigant served by US Mail.)(eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:13-cv-00216-MR
[CRIMINAL CASE NO. 3:09-cr-00060-MR-2]

JOHNNY ENRIQUE ARROBA,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on Petitioner’s Motion under 28,
United States Code, Section 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody [Doc. 1]. For the reasons that
follow, the Court finds that the petition must be dismissed as untimely.
I.

PROCEDURAL HISTORY
On July 31, 2009, Petitioner pled guilty pursuant to a written plea

agreement to two counts of bank robbery and aiding and abetting the
same, in violation of 18 U.S.C. §§ 2113(a), 2113(d), and 2. [Criminal Case
No. 3:09-cr-00060-MR-2, Doc. 27: Plea Agreement; Doc. 28: Acceptance
and Entry of Guilty Plea].

In preparation for Petitioner’s sentencing

hearing, the probation office prepared a presentence investigation report

(“PSR”), calculating a total offense level of 30 and a criminal history
category of II, yielding an advisory sentencing guidelines range of between
108 and 135 months. [Id., Doc. 33 at 15: PSR]. On February 4, 2010, this
Court sentenced Petitioner to 114 months’ imprisonment on each count, to
run concurrently.

[Id., Doc. 36: Judgment]. Judgment was entered on

February 16, 2010, and Petitioner did not appeal.
Petitioner placed the instant petition in the prison mailing system on
March 20, 2013, and it was stamp-filed in this Court on April 4, 2013. [Doc.
1]. In the § 2255 petition, Petitioner contends as his sole ground for relief
that his “decision to plead guilty pursuant to a plea agreement which
contained stipulations to enhancements for which Petitioner was not guilty
of, and based on counsel’s repeated assurances of a sentence of 51-63
months, was unknowing and involuntary due to counsel’s ineffectiveness.”
[Id. at 4].
II.

STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255

Proceedings, sentencing courts are directed to promptly examine motions
to vacate, along with “any attached exhibits and the record of prior
proceedings” in order to determine whether a petitioner is entitled to any
relief. After having considered the record in this matter, the Court finds that
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no response is necessary from the United States. Further, the Court finds
that this matter can be resolved without an evidentiary hearing.

See

Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
III.

DISCUSSION
On April 24, 1996, Congress enacted the Antiterrorism and Effective

Death Penalty Act (the “AEDPA”).

Among other things, the AEDPA

amended 28 U.S.C. § 2255 to include a one-year statute of limitations
period for the filing of a motion to vacate. The limitation 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)(1)-(4).

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As noted, judgment was entered on February 16, 2010, and
Petitioner did not appeal. Petitioner’s conviction, therefore, became final
fourteen days later on March 2, 2010, when his time to appeal expired.
See United States v. Clay, 537 U.S. 522, 524-25 (2003) (when a defendant
does not appeal, his conviction becomes final when the opportunity to
appeal expires); Fed. R. App. P. 4(b)(1)(A) (effective December 9, 2009)
(requiring defendant to file an appeal within fourteen days of entry of
judgment). Petitioner then had until March 2, 2011, to file a timely petition.
Petitioner placed the instant § 2255 petition in the prison mailing system on
March 20, 2013, and it was stamp-filed in this Court on April 4, 2013.
Because Petitioner did not file the instant § 2255 petition within a year of
when his conviction became final, and because none of the other time
periods set forth under Section 2255(f) applies, his petition is subject to
dismissal as untimely under Section 2255(f)(1).
In his petition and supporting memorandum of law, Petitioner
contends, in an apparent reference to 28 U.S.C. § 2255(f)(3), that the
petition is timely because it was filed within one year of the Supreme
Court’s March 21, 2012 decision in Missouri v. Frye, 132 S. Ct. 1399
(2012), in which the Supreme Court held that the Sixth Amendment right to
counsel is violated as a result of an attorney’s failure to inform the
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defendant of a plea offer from the government. The Supreme Court has
not held, however, that Fyre established a new right retroactively applicable
to cases on collateral review.1 See Pagan-San Miguel v. United States,
736 F.3d 44, 45 (1st Cir. 2013) (per curiam); In re Liddell, 722 F.3d 737,
738 (6th Cir. 2013); In re Graham, 714 F.3d 1181, 1182 (10th Cir. 2013); In
re King, 697 F.3d 1189, 1189 (5th Cir. 2012) (per curiam); Hare v. United
States, 688 F.3d 878, 880 (7th Cir. 2012); Buenrostro v. United States, 697
F.3d 1137, 1140 (9th Cir. 2012); In re Perez, 682 F.3d 930, 932-34 (11th
Cir. 2012). Thus, the petition is not timely under § 2255(f)(3).
The Court further finds equitable tolling is not warranted.

To be

entitled to equitable tolling, Petitioner must show (1) that he has diligently
pursued his rights and (2) that some extraordinary circumstance prevented
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Petitioner would not be entitled to relief under Frye in any event because, here,
Petitioner does not contend that counsel failed to inform Petitioner of a plea offer from
the Government. Rather, Petitioner contends that counsel assured him that if he pled
guilty his sentence would be between 51 and 63 months. Thus, Frye is not applicable.
Furthermore, in the written plea agreement, Petitioner was informed of the potential
sentence he could receive, which was up to 25 years’ imprisonment on each count, and
he further agreed that he understood that “any estimation from any source, including
defense counsel, of the likely sentence is a prediction rather than a promise, and that
the Court has the final discretion to impose any sentence up to the statutory maximum
for each count.” [Criminal Case No. 3:09-cr-00060-MR-2, Doc. 27 at 1-2]. Therefore,
even if the petition were not time-barred, a general ineffective assistance of counsel
claim under Strickland v. Washington, 466 U.S. 668 (1984), would likewise fail because
Petitioner could not establish prejudice from counsel’s alleged incorrect prediction as to
Petitioner’s sentence. As for Petitioner’s complaint that his sentence was based on
“enhancements for which [he] was not guilty,” [see Doc. 1-1 at 7], such as using a
dangerous weapon during the bank robberies, the Court was required to find, and did
find, by a preponderance of the evidence the facts supporting such enhancements. See
United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008).
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the timely filing. United States v. Oriakhi, 394 Fed. Appx. 976, 977 (4th Cir.
2010). Petitioner has not shown that he was diligent in filing his § 2255
motion or that some extraordinary circumstance prevented the timely filing
of his petition. Thus, he is not entitled to equitable tolling, and the petition
will be dismissed as untimely.2
IV.

CONCLUSION
For the reasons stated herein, the Court will dismiss the § 2255

petition as untimely.
The Court finds that the Petitioner has not made a substantial
showing of a denial of a constitutional right. See generally 28 U.S.C. §
2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in
order to satisfy § 2253(c), a “petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85
(2000)).

Petitioner has failed to demonstrate both that this Court’s

dispositive procedural rulings are debatable, and that his Motion to Vacate
states a debatable claim of the denial of a constitutional right. Slack v.
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The Court finds that, based on Petitioner’s discussion of timeliness in his petition, the
rule articulated in Hill v. Braxton, 277 F.3d 701(4th Cir. 2002), has been satisfied. In Hill
v. Braxton, the Fourth Circuit found that district courts are required to advise a pro se
petitioner that his habeas motion or petition is subject to dismissal as time-barred under
the AEDPA, and to give petitioner an opportunity to explain his delay before entering a
sua sponte dismissal of the case. Id. at 706.
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McDaniel, 529 U.S. 473, 484-85 (2000). As a result, the Court declines to
issue a certificate of appealability.

See Rule 11(a), Rules Governing

Section 2255 Proceedings for the United States District Courts, 28 U.S.C. §
2255.

ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s § 2255 Motion to
Vacate [Doc. 1] is DISMISSED WITH PREJUDICE as untimely.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.

Signed: May 21, 2014

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