Zelaya v. USA
ORDER denying and dismissing Petitioner's Motion to Vacate, Set Aside or Correct Sentence (2255). Petitioner's 2 Motion for Summary Judgment is DENIED. This Court declines to issue a Certificate of Appealability. Signed by District Judge Robert J. Conrad, Jr on 1/11/2022. (Pro se litigant served by US Mail.)(brl)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA,
THIS MATTER is before the Court on initial review of Petitioner’s Pro Se Motion to
Vacate Sentence under 28 U.S.C. § 2255. [CV Doc. 1].1
Petitioner Miguel Zelaya (“Petitioner”) is a member of the street gang La Mara
Salvatrucha, or MS-13. United States v. Zelaya, 908 F.3d 920, 924 (4th Cir. 2018). MS-13,
formed in the 1980s by Salvadoran immigrants to Los Angeles for protection against rival street
gangs, “has grown into a violent organization with active ‘cliques,’ or local chapters with varying
levels of autonomy, operating throughout the United States and several Central American
countries.” Id. at 924. “MS-13 cliques may extort local businesses or drug dealers, participate in
international narcotics trafficking, and remit funds to gang leadership in El Salvador.”
Petitioner was a member of an MS-13 clique in or around Charlotte, North Carolina. Id. He
became interested in MS-13 at a young age. Id. He held himself out to MS-13 leaders in Charlotte
Citations to the record herein contain the relevant document number referenced preceded by either the
letters “CV,” denoting that the document is listed on the docket in the civil case file number 3:21-cv-00671RJC, or the letters “CR,” denoting that the document is listed on the docket in the criminal case file number
Case 3:21-cv-00671-RJC Document 3 Filed 01/11/22 Page 1 of 7
as a fully initiated member of the gang. He engaged in bar fights with rival gangs with MS-13
associates. Id. On December 18, 2013, at the age of 19, Petitioner shot and killed Jose Ibarra
outside a bar because he believed that Ibarra threatened a friend. Id. Ballistics evidence connected
Petitioner to the shooting, and he confessed to police after waiving his Miranda rights. In his
confession, he accurately described the murder scene. Id. While he was imprisoned, but before
trial, Petitioner bragged to another MS-13 member about the killing. Id.
On May 19, 2015, a federal grand jury indicted Petitioner and three dozen other MS-13
members. [CR Doc. 3: Bill of Indictment]. Petitioner was charged with one count of RICO
(Racketeer Influenced Corrupt Organization) conspiracy in violation of 18 U.S.C. § 1962(d)
(Count One); one count of murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) and
2 (Count Two); and one count of use and possession of a firearm in further of a crime of violence
resulting in the death of Jose Ibarra in violation of 18 U.S.C. § 924(c) and 924(j)(1) (Count Three).
[Id. at 3-34]. Together with only three of thirty-six co-defendants, Petitioner proceeded to a jury
trial on all three counts after pleading not guilty. Zelaya, 908 F.3d at 925. Before trial, two coDefendants unsuccessfully moved for severance because, unlike Petitioner and the other remaining
co-Defendant, their charges did not involve murder. Id. The jury convicted Petitioner on all
counts. [CR Doc. 826: Jury Verdict].
Petitioner was sentenced to a term of imprisonment of 240 months on Count One, a term
of life on Count Two to run concurrently with the term of Count One, and another term of life on
Count Three to run consecutively to any other term of imprisonment. 2 [CR Doc. 1082 at 2].
Through counsel, Petitioner appealed his conviction. On appeal, represented by counsel, Petitioner
The terms on Counts One and Two also run concurrently with the sentence imposed in Criminal Case No.
3:14-cr-00015, in which Petitioner pleaded guilty to four counts under 18 U.S.C. § 1951 and one count
under 18 U.S.C. §§ 924(c) and 2 and was sentenced to a total term of imprisonment of 154 months. [Case
No. 3:14-cr-15, Doc. 81: Judgment].
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challenged the Court’s denial of his Rule 29 motion for acquittal and argued that there was
insufficient evidence to support his RICO conviction and his VICAR conviction (and therefore his
§ 924(c) conviction predicated on the VICAR offense). Zelaya, 908 F.3d at 925-27. On November
14, 2018, the Fourth Circuit affirmed. Id. at 931. Petitioner did not petition the Supreme Court
for writ of certiorari.
On December 16, 2021, Petitioner filed a pro se motion to vacate sentence under 28 U.S.C.
§ 2255 and a motion for summary judgment.3 [CV Docs. 1, 2]. Petitioner failed to indicate when
he placed his motion to vacate in the prison mailing system. [See id. at 12]. Petitioner’s motion
to vacate, however, was signed and post-marked December 13, 2021. [Id.; Doc. 1-3]. In his
motion to vacate, Petitioner argues four grounds for relief: (1) his Miranda rights were “visibly
violated” because he “had no appreciation or understanding of the necessary protocol;” (2) “[a]
severance motion was mandatory” because Petitioner “was the last name on a list of coconspirators totaling 37 and was the youngest by far, at 19;” (3) Petitioner was never offered a plea
agreement, which Petitioner believes is a “constitutional allowance;” and (4) Petitioner should
have been prosecuted as a juvenile because of the difference in his “mental age” and
“chronological age.” [CV Doc. 1 at 5-7, 9]. In his motion, Petitioner also asserts that his counsel
was ineffective for not defending Petitioner’s claim of actual innocence and that a “coerced
confession” and his actual innocence negate a finding of procedural default “for not presenting
content herein at an earlier time.” [See id. at 10].
Petitioner tacitly acknowledges that his motion to vacate is untimely and argues that
equitable tolling should apply. [Doc. 1 at 12; Doc. 1-1 at 1-4]. As grounds for equitable tolling,
In his motion for summary judgment, Petitioner briefly recounts the grounds for relief in his
motion to vacate and argues that no material facts remain in dispute and that summary judgment
is appropriate. [CV Doc. 2].
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Petitioner claims, incorrectly, that he “did nothing in appeal” because of his own ignorance and
“misguidance by his ineffective and unqualified counsel of record.” [CV Doc. 1-1 at 1]. Petitioner
argues that, while the Court advised Petitioner of his right to appeal, his attorney assured Petitioner
that “there was nothing to challenge on the merits.” [Id. at 2]. Petitioner now claims he is entitled
to equitable tolling because he is “mentally handicapped,” he was coerced into confessing by an
overzealous prosecutor, he is being denied the equal protection of the laws because of his
Honduran heritage, there was a fatal variance in the indictment, and he was never afforded “his
constitutional right to a plea agreement.” [Id. at 2-3].
STANDARD OF REVIEW
A federal prisoner claiming that his “sentence was imposed in violation of the Constitution
or the 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.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to
promptly examine motions to vacate, along with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims
set forth therein. After examining the record in this matter, the Court finds that Petitioner’s motion
can be resolved without an evidentiary hearing based on the record and governing law. See Raines
v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the
“AEDPA”). Among other things, the AEDPA amended 28 U.S.C. § 2255 by imposing a one-year
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statute of limitations period for the filing of a motion to vacate. Such amendment provides:
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run 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 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
28 U.S.C. § 2255(f).
Petitioner’s conviction here became final for purposes of Section 2255(f) on February 12,
2019, when the 90-day period to file a petition for writ of certiorari 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); Sup. Ct. R. 13(1). Petitioner, however, did not file
the instant motion to vacate until December 16, 2021, almost three years after his conviction
became final. Petitioner’s motion, therefore, is untimely and barred by the AEDPA.
Moreover, Petitioner has not stated adequate grounds for the application of equitable
tolling. To be entitled to equitable tolling, “an otherwise time-barred petitioner must present ‘(1)
extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that
prevented him from filing on time.’” United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004)
(quoting Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003), cert. denied, 541 U.S. 905, 124 S. Ct.
1605 (2004)). A petitioner must show he has been “pursuing his rights diligently.” Holland v.
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Florida, 560 U.S. 631, 649 (2010). Further, equitable tolling is limited to “rare instances – where
due to circumstances external to the party’s own conduct – it would be unconscionable to enforce
the limitation period against the party and gross injustice would result.” Whiteside v. United
States, 775 F.3d 180, 184 (4th Cir. 2014) (quoting Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.
Petitioner has not satisfied these rigorous standards. In support of application of equitable
tolling, Petitioner presents only grounds for the underlying Section 2255 motion that are meritless
and/or have been procedurally defaulted for his failure to raise them on appeal. 4 Contrary to
Petitioner’s claim, he did appeal his conviction. His attorney aptly raised the most viable grounds
on appeal and the Fourth Circuit found them unconvincing and affirmed his conviction. As such,
Petitioner fails now to show extraordinary circumstances, beyond his control or external to his own
conduct, that prevented him from filing on time. See Sosa, 364 F.3d at 512. Petitioner also fails
to demonstrate that he has been diligently pursuing his rights in any way.
Because Petitioner addressed the timeliness issue in his original petition, the Court need
not provide Petitioner any additional opportunities to address this issue. See Whitener v. United
States, No. 3:14-cv-600-MOC, 2014 WL 7339188 (Dec. 23, 2014); Cureton v. United States, 2007
WL 1651437, n.1 (W.D.N.C. June 2, 2007). As such, Petitioner’s claim is untimely under §
2255(f) and equitable tolling does not apply. The Court will, therefore, dismiss Petitioner’s motion
to vacate on initial review and deny Petitioner’s motion for summary judgment.
For the reasons stated herein, Petitioner’s Section 2255 motion is untimely and is denied
and dismissed with prejudice.
The Court also notes that there is no constitutional right to a plea agreement. See Weatherford v. Bursey,
429 U.S. 545, 561 (1977) (recognizing “there is no constitutional right to plea bargain”).
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The Court further finds that 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) (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 the Motion to Vacate states a
debatable claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. at 484-85. 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.
IT IS, THEREFORE, ORDERED that Petitioner’s Motion to Vacate Sentence under 28
U.S.C. § 2255 [Doc. 1] is DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Petitioner’s Motion for Summary Judgment [Doc. 2]
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section
2254 and Section 2255 Cases, this Court declines to issue a certificate of appealability.
Signed: January 11, 2022
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