Garza v. USA

Filing 8

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Francisco Cabrera Garza. It is accordingly recommended that Movant's motion for relief under 28 U.S.C. § 2255 be denied and the case dismissed with prejudice. It is further recommended that a certificate of appealability be denied. Signed by Magistrate Judge Don D. Bush on 2/15/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

FRANCISCO C. GARZA, #10356-078

§

VS.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 4:09cv597
CRIMINAL ACTION NO. 4:02cr100(15)

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Movant Francisco Cabrera Garza filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255, challenging constitutional violations concerning his Eastern District
of Texas, Sherman Division conviction in Case No. 4:02cr100(15). The motion was referred for
findings of fact, conclusions of law and recommendations for the disposition of the case.
Background
On September 20, 2006, Movant was sentenced to 360 months’ imprisonment after a jury
found him guilty of conspiracy to distribute or dispense or possess with intent to distribute or
dispense 3,4-methylenedioxy-methamphetamine (“MDMA” or “Ecstasy”), Methamphetamine,
cocaine, and Gama Hydroxybutyrate (“GHB”). This punishment was assessed following a remand
by the Fifth Circuit. He did not file a direct appeal challenging the sentence from September 26,
2006.
In the present motion, Movant asserts that he is entitled to relief because his trial counsel was
ineffective and because the trial court erred in sentencing. The Government was not ordered to file

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a Response.
Antiterrorism and Effective Death Penalty Act of 1996
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
was signed into law. A one year statute of limitations was enacted for motions to vacate, set aside
or correct a sentence pursuant to 28 U.S.C. § 2255. In general, a movant for collateral relief has one
year from “the date on which the judgment became final” to file a motion challenging a conviction.
A conviction is final under § 2255 when a defendant’s options for further direct review are
foreclosed. United States v. Gamble, 308 F.3d 536, 537 (5th Cir. 2000); United States v. Thomas,
203 F.3d 350, 352 (5th Cir. 2000). When a defendant fails to file a timely notice of appeal from the
judgment of the trial court, the conviction is final upon the expiration of the time for filing a notice
of appeal, which is ten days after the entry of the judgment. Fed. R. App. P. 4(b). See, e.g., Wims
v. United States, 225 F.3d 186, 188 (2nd Cir. 2000).
In the present case, Movant was sentenced on September 20, 2006, and his notice of appeal
was due ten days later. Fed. R. App. P. 4(b). Movant did not file a notice of appeal; consequently,
his conviction became final for purposes of § 2255 on October 4, 2006. See Plascencia v. United
States, 2005 WL 2124465 (N.D. Tex. 2005) (Not Reported in F. Supp.2d);1 United States v.
Cabrera, 2005 WL 1422154 (N.D. Tex. 2005) (Not Reported in F. Supp.2d). The present § 2255
motion had to be filed within one year from the date on which the judgment became final; thus,
Movant had until October 4, 2007, in which to file his motion. It was not filed until December 1,
2009. The present § 2255 motion was filed over two years and one month too late.

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The movant in this case, Plascencia, filed a motion for Certificate of Appealability, which
was granted. However, on June 26, 2007, the Fifth Circuit dismissed the case for want of
prosecution. See No. 05-11169 (5th Cir.).
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The Fifth Circuit has held that the district court has the power to equitably toll the limitations
period in “extraordinary circumstances.” Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir.1998).
In order to qualify for such equitable tolling, the petition must present “rare and exceptional
circumstances.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir.1998). In making this
determination, it should be noted that the Fifth Circuit has expressly held that proceeding pro se,
illiteracy, deafness, lack of legal training, unfamiliarity with the legal process, and claims of actual
innocence are insufficient reasons to equitably toll the statute of limitations. Felder v. Johnson, 204
F.3d 168, 173 (5th Cir.2000).

As a general rule, equitable tolling has historically been limited to situations where the
movant “has actively pursued [his] judicial remedies by filing a defective proceeding during the
statutory period, or where the [movant] has been induced or tricked by [an] adversary's misconduct
into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111
S. Ct. 453, 112 L. Ed.2d 435 (1990). Furthermore, equitable tolling cannot be used to thwart the
intent of Congress in enacting the limitations period. See Davis, 158 F.3d at 811 (noting that “rare
and exceptional circumstances” are required).
In this case, Movant has not shown any valid basis upon which to equitably toll the statute
of limitations. His motion was filed 789 days beyond the limitations period; accordingly, the motion
should be denied and dismissed.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a proceeding under
§ 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, it is respectfully recommended

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that this Court, nonetheless, address whether he would be entitled to a certificate of appealability.
See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule
on a certificate of appealability because “the district court that denies a [movant] relief is in the best
position to determine whether the [movant] has made a substantial showing of a denial of a
constitutional right on the issues before the court. Further briefing and argument on the very issues
the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a movant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
requirement associated with a “substantial showing of the denial of a constitutional right” in Slack
v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603-04, 146 L. Ed.2d 542 (2000). In cases where
a district court rejected constitutional claims on the merits, the movant must demonstrate “that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). When a district court denies
a motion on procedural grounds without reaching the underlying constitutional claim, a COA should
issue when the movant shows, at least, that jurists of reason would find it debatable whether the
motion states a valid claim of the denial of a constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its procedural ruling. Id.
In this case, it is respectfully recommended that reasonable jurists could not debate the denial
of Movant’s § 2255 motion on substantive or procedural grounds, nor find that the issues presented
are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37,
123 S. Ct. 1029, 1039, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604).
Accordingly, it is respectfully recommended that the Court find that Movant is not entitled to a
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certificate of appealability as to his claims.
Recommendation
It is accordingly recommended that Movant’s motion for relief under 28 U.S.C. § 2255 be
denied and the case dismissed with prejudice. It is further recommended that a certificate of
appealability be denied.
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve
and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations
contained in this Report within fourteen days after being served with a copy shall bar that party from
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de novo review by the district judge of those findings, conclusions and recommendations and, except
on grounds of plain error, from appellate review of unobjected-to factual findings and legal
conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n, 79
F.3d 1415, 1430 (5th Cir. 1996) (en banc).
SIGNED this 15th day of February, 2012.
.

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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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