Hernandez v. USA

Filing 10

Memorandum Opinion and Order: The motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255 is DISMISSED WITH PREJUDICE as time-barred. (Ordered by Judge Ed Kinkeade on 12/14/2017) (rekc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JESUS A. HERNANDEZ,
(BOP Registration No. 38315-177),
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)
)

No. 3:17-CV-1571-K
(3:08-CR-229-K-(2))

MEMORANDUM OPINION AND ORDER
Movant Jesus A. Hernandez, a federal prisoner, proceeding pro se, has filed a 28
U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence. See Dkt. Nos.
2 & 3. Because his Section 2255 motion is untimely, as explained below, the Court
DISMISSES the motion with prejudice as barred by the applicable statute of
limitations.
Background
In 2009, Movant pleaded guilty to conspiracy to possess with the intent to
distribute and distribution of a controlled substance, in violation of 21 U.S.C. §§ 846,
841(a)(1) & (b)(1)(A). See United States v. Hernandez, 3:08-CR-0229-K-(2) (N.D.
Tex.), Dkt. No. 355. On October 1, 2009, the Court entered judgment and sentenced
Movant to 180 months in prison with five years of supervised release. See id. He did
not appeal. See id. The Court later reduced his sentence under 18 U.S.C. § 3582(c)
1

based on a retroactive amendment to the United States Sentencing Guidelines. See
United States v. Hernandez, 3:08-CR-0229-K-(2) (N.D. Tex.), Dkt. No. 524.
On June 3, 2017, Movant filed this Section 2255 motion. See Dkt No. 2 at 12.
He claims that the government violated the plea agreement and that his counsel was
ineffective in representing him during plea negotiations, at sentencing, and in failing to
file a notice of appeal. See Dkt No. 2 at 4-8; see also Dkt No. 3. The government has
moved to dismiss his motion, arguing that it is barred by the statute of limitations. See
Dkt No. 8. Movant replies that the Court should treat his motion as timely because he
“do[es] not have knowledge about the law” and his counsel failed to file a direct appeal
in 2009. See Dkt No. 9 at 2.
Statute of Limitations
“[Section] 2255 establishes a ‘1-year period of limitation’ within which a federal
prisoner may file a motion to vacate, set aside, or correct his sentence under that
section.” Dodd v. United States, 545 U.S. 353, 356 (2005). It states:
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;

2

(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.
28 U.S.C. § 2255(f). Movant does not allege any facts that could trigger a starting date
under Sections 2255(f)(2)-(4), so his limitations period began to run when his
judgment of conviction became final. See § 2255(f)(1). His conviction became final on
October 11, 2009, when his time to file a direct appeal expired. See FED. R. APP. P.
4(b)(1)(A)(i) (stating that an appeal in a criminal case must be filed within ten days of
the entry of judgment; amended to fourteen days effective December 1, 2009); see also
United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008) (holding that, where a
federal prisoner does not file a direct appeal, his conviction becomes final when his time
to do so expires). And the government is correct that the Court’s reduction of his
sentence under 18 U.S.C. § 3582(c) did not re-start the statute of limitations under
Section 2255(f)(1). See United States v. Olvera, 775 F.3d 726, 729 (5th Cir. 2015)
(holding that a sentence modification under Section 3582(c) does not impact the
finality of a criminal judgment and so does not re-start the statute of limitations).
Accordingly, Movant’s one-year limitations period expired in October 2010. His
Section 2255 motion—filed almost seven years later—is untimely absent equitable
tolling.
3

“[T]he statute of limitations in § 2255 may be equitably tolled in ‘rare and
exceptional circumstances.’” United States v. Patterson, 211 F.3d 927, 930 (5th Cir.
2000). But “a litigant is entitled to equitable tolling of a statute of limitations only if
the litigant establishes two elements: ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented timely
filing.’” Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755 (2016)
(quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). The United States Supreme
Court recently reaffirmed “that the second prong of the equitable tolling test is met
only where the circumstances that caused a litigant’s delay are both extraordinary and
beyond its control.” Id. at 756 (emphasis in original).
Here, Movant presents no argument

or evidence that

extraordinary

circumstances prevented him from filing his motion to vacate earlier, and no grounds
for equitable tolling are apparent to the Court. Although he argues that he did not
present his claims earlier because he had no knowledge of the law, that is not a ground
for equitable tolling. See Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000)
(holding that ignorance of the law, a lack of knowledge of filing deadlines, a prisoner’s
pro se status, and a lack of legal training do not support equitable tolling of AEDPA’s
statute of limitations). And though Movant argues that his counsel failed to file a direct
appeal as instructed in 2009, he does not explain why he did not pursue his
post-conviction rights until seven years later. See, e.g., Manning v. Epps, 688 F.3d 177,

4

186 (5th Cir. 2012) (holding that a prisoner did not diligently pursue his
post-conviction rights when he “did nothing for more than nineteen months after his
conviction became final.”). Because Movant has not met his burden to establish
circumstances warranting equitable tolling, his Section 2255 motion is time-barred.
Conclusion
For the foregoing reasons, the motion to vacate, set aside, or correct sentence
brought pursuant to 28 U.S.C. § 2255 is DISMISSED WITH PREJUDICE as
time-barred.
SO ORDERED.
Signed December 14th, 2017.

ED KINKEADE
UNITED STATES DISTRICT JUDGE

5