Espinosa v. United States of America
Filing
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OPINION AND ORDER DENYING 1 Motion to Vacate/Set Aside/Correct Sentence (2255) AND ORDER DENYING CERTIFICATE OF APPEALABILITY. Signed by Charles B. Kornmann on 04/05/2012. (SAT)
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UNITED STATES DISTRICT COURT
FILED
DISTRICT OF SOUTH DAKOTA
APR 05 2012
NORTHERN DMSION
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JOSEPH E. ESPINOSA, SR.
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Petitioner,
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-vsUNITED STATES OF AMERICA,
Respondent.
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CIV 12-3009
CR07-30079
OPINION AND ORDER DENYING
MOTION TO VACATE AND
ORDER DENYING
CERTIFICATE OF APPEALABILITY
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Petitioner was convicted of aggravated sexual abuse and abusive sexual contact.
He was sentenced on November 30, 2008, to concurrent terms of 30 years and 20 years
custody. He appealed his convictions and sentences and the United States Court of
appeals affirmed the aggravated sexual abuse conviction and sentence but reversed the
abusive sexual contact conviction and sentence. United States v. Espinosa, 585 F.3d 418
(8th Cir. 2009). Upon remand, this Court entered a judgment of acquittal on the abusive
sexual contact charge and an amended judgment sentencing the defendant to 30 years
custody on the aggravated sexual abuse charge. Petitioner has fi1ed a motion to vacate,
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set aside, or correct his conviction and sentence contending that the indictment was
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defective because the grand jury failed to make a finding that the victim was an Indian.
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Petitioner's conviction and sentence became fmal two years ago. Pursuant to the
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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104·132,
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28 U.S.C. § 2255:
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A I-year period of limitation shal1 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
fmal;
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(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.
Any motion to vacate pursuant to 28 U.S.C. § 2255 would be untimely unless petitioner
can set forth a basis for tolling the one year limitations period.
Petitioner contends that his motion is timely based upon newly discovered
evidence, the receipt of a copy of his indictment on March I, 2012, and the determination
that it was untimely. To invoke the statute of limitations savings clause in 28 U.S.C.
2255(f)(4), "petitioner must show the existence ofa new fact" and that he "acted with
diligence to discover the new fact." Anjulo-Lqpez y. United States. 541 F.3d 814, 817
(8th Cir. 2008). The "fact" upon which petitioner relies is that his indictment did not
contain an aJlegation that the victim was an Indian. The fact that the indictment did not
allege the victim's status as Indian was known to petitioner more than one year before the
deadline for filing his motion to vacate. The indictment was read to him at his initial
appearance and was read during the preliminary jury instructions. The elements charged
in the indictment were set forth in the Court's final instructions which were read out loud
at trial. Petitioner's claim that the lack of the victim's Indian status in the indictment is a
new fact is meritless.
Petitioner's motion would, in any event, be denied ifit were considered on the
merits. Petitioner was convicted of aggravated sexual abuse of a child in violation of 18
U.S.C. §§ 1153, 2241(a)(1), 2241(c), and 2246(2XA). The Indian status of the victim is
irrelevant to a conviction of an Indian committing a major crime in Indian country.
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Now, therefore,
IT IS ORDERED that the motion to vacate, set aside. or correct sentence is
dened.
TO THE EIGHTH CIRCUIT COURT OF APPEALS:
IT IS HEREBY CERTIFIED that there does not exist probable cause of an
appealable issue with respect to the Court's order denying petitionees motion to vacate,
set aside, or correct sentence. No certificate of appealability will be granted. 28 U.S.C.
§ 2253(c). This in no way hampers the petitioner's ability to request issuance of the
certificate by a circuit judge pursuant to Fed. R. App. P. 22.
Dated this
5~ay ofApril, 2012.
BY THE COURT:
United States District Judge
ATIEST:
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DE
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