Gallegos v. United States of America

Filing 8

ORDER DENYING & DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255, ORDER DENYING CERTIFICATE OF APPEALABILITY, ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge Jon Phipps McCalla on 9/3/2020. (joj)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

DANIEL GALLEGOS,
Movant,
Cv. No. 2:17-cv-02246-JPM-tmp
Cr. No. 2:11-cr-20192-JPM-20

v.
UNITED STATES,
Respondent.

ORDER DENYING & DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255
ORDER DENYING CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court are the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“§ 2255 Motion”) filed by Movant, Daniel Gallegos,
Bureau of Prisons (“BOP”) register number 52172-079, an inmate at the Federal Medical Center
(“FMC”) in Fort Worth, Texas, and the Response filed by the United States. (§ 2255, ECF No.
1, Response, ECF No. 7.) For the reasons stated below, Movant’s § 2255 Motion is DENIED.
I.

BACKGROUND
A.

Criminal Case Number 2:11-cr-20192-JPM-20

On February 22, 2012, a federal grand jury in the Western District of Tennessee returned
a four count second superseding indictment against Gallegos and twenty-four codefendants.
(Indictment, Criminal Case (“Cr.”) No. 2:11-cr-20192-JPM-20, ECF No. 444.) Gallegos was
named in count one and charged with conspiracy to possess at least 1,000 kilograms of marijuana
with intent to distribute in violation of 21 U.S.C. § 846. (Id.) On September 21, 2012, the

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United States filed an information pursuant to 21 U.S.C. § 851 listing Gallegos prior convictions.
(Cr. ECF No. 734.) On September 24, 2012, a jury trial began. (See Cr., ECF No. 736.) The
trial concluded on September 28, 2012, with the jury returning a verdict of guilty against
Gallegos. (Cr. ECF Nos. 736, 740, 742, 744, 746, 751.) The jury attributed at least 1,000
kilograms of marijuana to Defendant. (Cr. ECF Nos. 746, 750.)
On January 4, 2013, the Court sentenced Gallegos to 240 months in prison, along with a
ten-year term of supervised release. (Cr. ECF No. 968.) Gallegos appealed. (Cr. ECF Nos. 986
& 996.) Gallegos contended that the evidence was not sufficient to sustain his conviction, that
the prosecution committed acts of misconduct, that his sentence was improperly enhanced, and
that his Eighth Amendment rights were violated. See United States v. Gallegos, 553 Fed. App’x
527, 529–30 (6th Cir. 2014). The Sixth Circuit affirmed Gallegos’ conviction and sentence. Id.
at 533.
B.

Case Number: 2:17-cv-02246-JPM-tmp

On April 3, 2017, Gallegos filed this § 2255 Motion. (§ 2255 Mot., ECF No. 1.) The
United States contends that the § 2255 Motion is untimely. (Response, ECF No. 7 at PageID
26.)
II.

LEGAL STANDARD
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214 (Apr. 24, 1996) (codified, inter alia, at 28 U.S.C. § 2244 et seq.) (AEDPA) amended
28 U.S.C. §§ 2244(b) and 2255 to limit a defendant to his direct appeal and one collateral attack,
filed within one year of the date his conviction is final. Because this motion was filed after April
24, 1996, the AEDPA is applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Paragraph
(f) of 28 U.S.C. § 2255 provides:
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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.
Id.
“[F]or purposes of collateral attack, a conviction becomes final at the conclusion of direct
review.” Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001). The Supreme Court has
held that, for purposes of postconviction relief, “[f]inality attaches when this 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.” Clay v. United States, 537 U.S. 522, 527 (2003).
“As a general matter, a conviction becomes final for purposes of collateral attack at the
conclusion of direct review.” United States v. Cottage, 307 F.3d 494, 498 (6th Cir. 2002).
III.

ANALYSIS
Gallegos’ judgment became final on April 28, 2014, when the time for filing a petition

for writ of certiorari expired. The running of the § 2255 statute of limitations commenced on
that date, and it expired one year later, on April 28, 2015. Gallegos did not file his § 2255
Motion until April 3, 2017. (§ 2255 Motion, ECF No. 1 at PageID 13.)

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Because the Motion is time-barred, the Court must determine whether Gallegos presents
grounds for the application of equitable tolling. “[T]he doctrine of equitable tolling allows
federal courts to toll a statute of limitations when a litigant’s failure to meet a legally mandated
deadline unavoidably arose from circumstances beyond that litigant’s control.”

Keenan v.

Bagley, 400 F.3d 417, 421 (6th Cir. 2005) (quoting Graham-Humphreys v. Memphis Brooks
Museum of Art, Inc., 209 F.3d 522, 560–61 (6th Cir. 2005)) (internal quotation marks omitted).
The § 2255 limitations period is subject to equitable tolling. Hargrove v. Brigano, 300 F.3d 717,
719 (6th Cir. 2002). “[T]he doctrine of equitable tolling is used sparingly by the federal courts.”
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). “The party seeking equitable tolling
bears the burden of proving he is entitled to it.” Id. at 784. A habeas petitioner is entitled to
equitable tolling “only if he 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.
Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Gallegos contends that he qualifies for the application of equitable tolling because he:
[is] not versed in the issues of law; limited understanding in English; very little
education; could not read or understand any legal documents; was/am limited on
funds and family can not provide either; obtained the assistance of a fellow
inmate in the preparation of this [m]otion.
(§ 2255 Motion, ECF No. 1 at PageID 12.) Movant fails to allege any circumstances which
prevented him from inquiring about additional remedies before the expiration of the AEDPA’s
one-year statute of limitations period.
The United States asserts that Gallegos has provided no evidence that he has diligently
pursued his rights. (ECF No. 7 at PageID 31.) The criminal docket demonstrates that from
August 22, 2014 to May 21, 2019, Gallegos filed numerous pro se motions and corresponded on
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several occasions with the Clerk of Court. (Cr. ECF No. 1211, 1216, 1411, 1417, 1439, 149596, 1500, 1511, 1517, and 1519.)

These filings belie Gallegos’ claim of limited English

proficiency.
Movant also did not require the services of an interpreter during the trial and at
sentencing. Gallegos spoke English during the trial and sentencing hearing. (See Trial Tr., Cr.
ECF No. 1085 at PageID 3224–26, 3228–29, 3236, 28; Trial Tr., Cr. ECF No. 1086 at PageID
3248–52.) Gallegos was born in the United States, is a United States citizen, and completed his
education through the eighth grade. (Presentence Report ¶¶ 45, 49.)
Movant’s other arguments are equally unpersuasive. Ignorance of the law does not toll
the limitations period. Price v. Jamrog, 79 F. App’x 110, 112 (6th Cir. 2003). That Gallegos
has limited legal knowledge does not justify the equitable tolling of AEDPA’s statute of
limitations period.
In summary, Movant has not provided sufficient justification for the tolling of the oneyear statute of limitations period. Movant was not diligent in pursuing his rights. He has failed
to show that extraordinary circumstances prevented his timely filing. His § 2255 Motion is
therefore time-barred.
IV.

CONCLUSION
The motion and the files and record in this case “conclusively show that the prisoner is

entitled to no relief.” 28 U.S.C. § 2255(b). Movant’s conviction and sentence are valid. His
motion is DENIED. Judgment shall be entered for the United States.
V.

APPELLATE ISSUES
Pursuant to 28 U.S.C. § 2253(c)(1), the district court is required to evaluate the

appealability of its decision denying a § 2255 motion and to issue a certificate of appealability
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(“COA”) “only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255 movant may appeal
without this certificate.
The COA must indicate the specific issue or issues that satisfy the required showing. 28
U.S.C. § 2253(c)(2), (3). A “substantial showing” is made when the movant demonstrates that
“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal citation and quotation marks omitted). A
COA does not require a showing that the appeal will succeed. Miller-El, 537 U.S. at 337;
Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011). Courts should not issue a COA as
a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005) (quoting Miller-El,
537 U.S. at 337).
In this case, for the reasons stated, the § 2255 Motion is time barred and, therefore,
Movant cannot present a question of some substance about which reasonable jurists could differ.
The Court therefore DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C.
§ 1915(a)-(b), does not apply to appeals of orders denying § 2255 motions.

Kincade v.

Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255
case, and thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the
prisoner must obtain pauper status pursuant to Fed. R. App. P. 24(a). Kincade, 117 F.3d at 952.
Rule 24(a) provides that a party seeking pauper status on appeal must first file a motion in the
district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a)
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also provides that if the district court certifies that an appeal would not be taken in good faith, or
otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to proceed
in forma pauperis in the appellate court. See Fed. R. App. P. 24(a) (4)-(5).
In this case, for the same reasons the Court denies a certificate of appealability, the Court
determines that any appeal would not be taken in good faith. It is therefore CERTIFIED,
pursuant to Fed. R. App. P. 24(a), that any appeal in this matter would not be taken in good faith,
and leave to appeal in forma pauperis is DENIED. If Movant files a notice of appeal, he must
also pay the full $505 appellate filing fee (see 28 U.S.C. §§ 1913, 1917) or file a motion to
proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within
thirty (30) days (see Fed. R. App. P. 24(a) (4)-(5)).
IT IS SO ORDERED, this 3rd day of September, 2020.
/s/ Jon P. McCalla
JON PHIPPS MCCALLA
UNITED STATES DISTRICT JUDGE

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