Castro-Rodriguez v. USA

Filing 6

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Imbert Castro-Rodriguez. It is accordingly recommended that Movants 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 4/13/2015. (kls, )

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

IMBERT CASTRO-RODRIGUEZ,#20864-078 §

VS.

§

UNITED STATES OF AMERICA

CIVIL ACTION NO. 4:15cv188
CRIMINAL ACTION NO. 4:13cr35(1)

§

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Movant, a federal prisoner, filed a pro se motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. The motion was referred to the undersigned United States Magistrate
Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case
pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the
Assignment of Duties to the United States Magistrate Judge.
BACKGROUND
On September 13, 2013, after a plea of guilty, Movant was sentenced to 87 months of
imprisonment for his conviction of reentry of deported alien, in violation of 8 U.S.C. § 1326(a) &
(b)(2). He ultimately filed a notice of appeal almost one year later, on July 24, 2014. He then asked
the Fifth Circuit Court of Appeals to dismiss his appeal. On December 1, 2014, the Fifth Circuit
dismissed the appeal based on Movant’s voluntary motion to dismiss, and did not consider the merits
of Movant’s appeal.
The present motion was filed on March 16, 2015. Movant failed to specify the date that he

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placed it in the prison mail system. However, he stated that he executed it on March 9, 2015. The
motion could not have been mailed prior to that date; thus, the motion is deemed filed on March 9,
2015. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). In his motion, Movant claims that
he is entitled to relief based on violations of his Sixth and Fourteenth Amendments. The
Government was not ordered to file 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 fourteen days after the entry of the judgment. Fed. R. App. P. 4(b). See, e.g.,
Untied States v. Scruggs, 691 F.3d 660, 669 (5th Cir. 2012), cert. denied, —U.S. —, 133 S. Ct.
1282, 185 L. Ed.2d 186 (2013); Wims v. United States, 225 F.3d 186, 188 (2nd Cir. 2000).
Movant was sentenced on September 13, 2013, and his notice of appeal was due fourteen
days later. Fed. R. App. P. 4(b). Movant did not file a notice of appeal within the fourteen days;
consequently, his conviction became final for purposes of § 2255 on September 27, 2013. See

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Plascencia v. United States, 537 F.3D 385, 390 (5th Cir. 2008);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
September 27, 2014, in which to file his motion. It was not filed until March 16, 2015. Movant filed
his § 2255 motion filed 5 months and 17 days beyond the limitations period.
The United States Supreme Court confirmed that the AEDPA statute of limitation is not a
jurisdictional bar, and it is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645, 130
S. Ct. 2549, 2560, 177 L. Ed.2d 130 (2010). However, “[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.” Mathis v. Thaler, 616
F.3d 461, 474 (5th Cir. 2010) (quoting Holland, 560 U.S. at 648, 130 S. Ct. at 2562). “Courts must
consider the individual facts and circumstances of each case in determining whether equitable tolling
is appropriate.” Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). The movant bears the
burden of proving that he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th
Cir. 2000).
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 Movant must present “rare and exceptional

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The movant in this case, Plascencia, filed a motion for Certificate of Appealability, which
was granted. However, on July 23, 2008, the Fifth Circuit affirmed the District Court’s decision.
See United States v. Plascencia, 537 F.3d 385, (5th Cir. 2008).

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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 his 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). At the same time, the court is aware that dismissal of
a first federal habeas petition is a “particularly serious matter, for that dismissal denies the movant
the protections of the Great Writ entirely, risking injury to an important interest in human liberty.”
Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct. 1293, 134 L. Ed.2d 440 (1996).
In this case, Movant was given the opportunity to respond to the fact that his motion was not
timely filed. It appears that he erroneously believes his motion was due one year from the date that
the Fifth Circuit dismissed his appeal. However, this reasoning is incorrect. Even if the period of
time was tolled in which his untimely-filed appeal was pending before being dismissed, Movant still
filed his motion 40 days beyond the limitations period. Movant has failed to show “rare and
exceptional circumstances.” Davis, 158 F.3d at 810-11. He has failed to show due diligence.
Mathis, 616 F.3d at 474. Unfamiliarity with the legal process and lack of legal training are

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insufficient reasons to equitably toll the statute of limitations. Felder, 204 F.3d at 173. This motion
should be denied.
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
that this court, nonetheless, address whether Movant 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
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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
certificate of appealability as to the claims raised.
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 service of the magistrate judge’s report, any party must serve
and file specific written objections to the findings and recommendations of the magistrate judge.
28 U.S.C. § 636(b)(1)( C). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and specify the place
in the magistrate judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the magistrate judge
is not specific.
Failure to file specific, written objections will bar the party from appealing the unobjected-to
factual findings and legal conclusions of the magistrate judge that are accepted by the district court,
except upon grounds of plain error, provided that the party has been served with notice that such
consequences will result from a failure to object See Douglass v. United Servs. Auto. Ass'n, 79 F.3d
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.

1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections from ten to fourteen days).
SIGNED this 13th day of April, 2015.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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