Mendez-Roldan v. USA
Filing
7
OPINION AND ORDER noted 5 pro se Informative Motion; denied 1 pro se Motion to Vacate, Set Aside or Correct Sentence (2255). Motion terminated: USA's 4 Motion to Dismiss. Signed by Judge Carmen C. Cerezo on 7/31/2019. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MELVIN MENDEZ ROLDAN
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant
CIVIL 16-1959CCC
(Related Cr. 06-0299-03CCC)
OPINION AND ORDER
Before the Court is petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence Under 28 U.S.C. § 2255 (d.e. 1) filed May 24, 2016. The United
States responded on August 8, 2016, with a Motion to Dismiss (d.e. 4) alleging
that petitioner’s § 2255 motion is untimely. Petitioner contends in a Pro Se
Informative Motion (d.e. 5), which is NOTED, that his motion is timely because
he is entitled to equitable tolling.
The Antiterrorism and Effective Death Penalty Act (AEDPA) sets a
one-year statute of limitations for 28 U.S.C. § 2255 motions. The statute of
limitations begins to run on “the date on which the judgment of conviction
becomes final.” 28 U.S.C. § 2255(f)(1). However, equitable tolling is available
when the petitioner shows “‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way’ and prevented
timely filing.”
Holland v. Fla., 560 U.S. 631 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)).
Petitioner’s conviction became final on October 7, 2013, when the
Supreme Court of the United States denied certiorari; the AEDPA statute of
limitations expired on October 7, 2014. Petitioner sent his counsel five letters
requesting information about the status of the Petition for Writ of Certiorari;
CIVIL 16-1959CCC
(Related Cr. 06-0299-03CCC)
2
several of these letters specifically reference petitioner's need for information
in order to file his § 2255 motion (d.e. 5-1). Petitioner has shown that he did
not receive a response from counsel informing him of the denial of certiorari
until May 12, 2015 (d.e. 5-1). Petitioner’s § 2255 motion (d.e. 1) was filed less
than one year later, on April 21, 2016.
Because petitioner pursued his rights diligently by repeatedly seeking
information about the status of certiorari, and because the extraordinary
circumstance of his counsel’s failure to inform him of the denial of certiorari
prevented timely filing, the Court finds that petitioner is entitled to equitable
tolling.
See e.g. Baskin v. United States, 998 F. Supp. 188,
190 (D. Conn. 1998) (permitting equitable tolling when counsel informed
petitioner of denial of certiorari after § 2255 statute of limitations expired);
Celikoski v. United States, 21 F. App'x 19, 22 (1st Cir. 2001) (distinguishing
Baskin because petitioner received notice of denial of certiorari prior to the
expiration of the statute of limitations).
However, there is another issue with petitioner’s § 2255 motion, which is
that he fails to provide supporting facts for any of his three claims. The first
ground, “ineffective assistance of counsel,” is supported only by a conclusory
statement that “the petitioner[’s] attorney representation fell below [an]
obje[c]tive standard of reasonabless.” The second ground, “falsehood by
means of the witness in front of the grand jury”, fails to identify both the witness
and the alleged false statement. The third ground makes general reference to
the untimeliness of the investigation leading to the indictment.
CIVIL 16-1959CCC
(Related Cr. 06-0299-03CCC)
3
As petitioner has failed to set forth facts in support of his claims, his
Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255
(d.e. 1) is DENIED. Judgment shall be entered accordingly.
The Clerk of the Court SHALL mail a copy of this Opinion and Order to
pro se petitioner Melvin Méndez Roldán, #30089-069, Unit 5, United States
Penitentiary McCreary, P.O. Box 3000, Pine Knot, Kentucky 42635.
SO ORDERED.
At San Juan, Puerto Rico, on July 31, 2019.
S/CARMEN CONSUELO CEREZO
United States District Judge
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