Hernandez-Mendoza v. United States of America

Filing 4

ORDER for service and order to show cause. Briefs due from the parties on or before November 30, 2015. Signed by US Magistrate Judge Veronica L. Duffy on 10/28/2015. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JESE HERNANDEZ-MENDOZA,

5:15-CV-05077-KES

Movant,
ORDER FOR SERVICE
AND
ORDER TO SHOW CAUSE

vs.
UNITED STATES OF AMERICA,
Respondent.

INTRODUCTION
Movant, Jese Hernandez-Mendoza, an inmate at the federal Taft
Correctional Institution in Taft, California, has filed a motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. § 2255. The pending
matter was referred to this magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and the October 16, 2014 standing order of the Honorable Karen
E. Schreier, district judge.
FACTS
Mr. Hernandez-Mendoza was found guilty by a jury of conspiracy to
distribute a controlled substance (Count I) and two counts of possession with
intent to distribute a controlled substance (Counts II and III). He was
sentenced on December 1, 2008, to 121 months’ imprisonment.
Mr. Hernandez-Mendoza filed a direct appeal and the Eighth Circuit Court of
Appeals affirmed. A mandate was issued on July 15, 2010. Mr. Hernandez-

Mendoza appealed to the United States Supreme Court and his petition for a
writ of certiorari was denied on February 28, 2011.
On November 19, 2014, Mr. Hernandez-Mendoza filed a motion for
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). The motion was
granted on January 5, 2015, and an amended judgment was entered setting
forth a sentence of 120 months’ imprisonment on each count, all such counts
to run concurrently, effective November 1, 2015. Mr. Hernandez-Mendoza filed
this motion on October 26, 2015.
DISCUSSION
Rule 4 of the Rules Government Section 2255 Proceedings states in
pertinent part:
The judge who receives the motion must promptly examine it. 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, the judge must dismiss the motion and direct the clerk to
notify the moving party. If the motion is not dismissed, the judge
must order the United States attorney to file an answer, motion, or
other response within a fixed time, or to take other action the
judge may order.
Consistent with the duty imposed on this court by Rule 4 above, the
court has examined Mr. Hernandez-Mendoza’s § 2255 motion. The issue of
whether Mr. Hernandez-Mendoza’s motion was timely made is apparent from a
reading of the motion. The statute of limitations for § 2255 motions is as
follows:
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, 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.
See 28 U.S.C. § 2255(f).
Of the four specified dates listed in § 2255(f), only one is relevant
hereBAthe date on which the judgment of conviction becomes final.@ Id. A
judgment is deemed final Awhere the judgment of conviction was rendered, the
availability of appeal exhausted, and the time for petition for certiorari had
elapsed [or a petition for certiorari finally denied...].@ United States v. Johnson,
457 U.S. 537, 543, n. 8 (1982) (citation omitted); see also Clay v. United States,
537 U.S. 522, 527 (2003) (For the purpose of starting ' 2255's one-year
limitation period, A[f]inality attaches when [the Supreme] Court affirms a
conviction on the merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition expires.@). The time
for filing a petition for certiorari is 90 days after entry of the Court of Appeals=
judgment. Clay, 537 U.S. at 525.

In this case, Mr. Hernandez-Mendoza did seek a writ of certiorari from
the Supreme Court. That petition was denied by the Court on February 28,
2011. Thus, Mr. Hernandez-Mendoza had one year from that date—or until
February 28, 2012—to file his instant motion pursuant to § 2255. It appears
Mr. Hernandez-Mendoza’s motion is, therefore, more than three years too late.
In the Eighth Circuit, the doctrine of equitable tolling has been extended
to ' 2255 motions. United States v. Martin, 408 F.3d 1089, 1092 (8th Cir.
2005). Equitable tolling is an extraordinary remedy used only in rare
circumstances and Aaffords the otherwise time-barred petitioner an exceedingly
narrow window of relief.@ Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001);
United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002). A >[A]ny invocation of
equity to relieve the strict application of a statute of limitations must be
guarded and infrequent, lest circumstances of individualized hardship
supplant the rules of clearly drafted statutes.= @ Jihad, 267 F.3d at 806
(quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)).
Equitable tolling is only applicable in two instances: A(1) if there are
extraordinary circumstances= beyond a movant=s control that would keep him
from filing in a timely fashion or (2) if the government=s conduct >lulled= the
movant into inaction through reliance on that conduct.@ United States v.
Hernandez, 436 F.3d 851, 858 (8th Cir. 2006) (internal citations omitted).
AEquitable tolling only applies when the circumstances that cause the delay in
filing are >external to the plaintiff and not attributable to his actions.= @ Id. at
858 (citing Maghee v. Ault, 410 F.3d 473, 476 (8th Cir. 2005)) (additional
4

citation omitted). Further, [t]he petitioner must also demonstrate that he acted
with due diligence in pursuing his [' 2255] petition.@ E.J.R.E. v. United States,
453 F.3d 1094, 1097 (8th Cir. 2006).
CONCLUSION AND ORDER
With the above general principles in mind, and having preliminarily
reviewed Mr. Hernandez-Mendoza’s motion, it is hereby
ORDERED that:
1.

The Clerk of Court is directed to serve upon the attorney for the

United States copies of Mr. Hernandez-Mendoza’s motion (Docket 1) and this
Order;
2.

On or before November 30, 2015, the parties shall file briefs,

documentation, and/or other appropriate authority showing cause why
Mr. Hernandez-Mendoza’s § 2255 motion, filed October 26, 2015, should not
be dismissed as untimely pursuant to 28 U.S.C. § 2255(f).
DATED this 28th day of October, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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