Garcia-Grande v. USA
Filing
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MEMORANDUM OPINION AND ORDER: The 2 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 12/15/2017) (ran)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARIO RENE GARCIA-GRANDE
(BOP Registration No. 93582-079),
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 3:17-CV-2195-K
(3:14-CR-424-K-(01))
MEMORANDUM OPINION AND ORDER
Movant Mario Rene Garcia-Grande, a federal prisoner, proceeding pro se, has
filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. See Dkt.
No. 5. Because his Section 2255 motion is barred by the applicable statute of
limitations, as explained below, the Court DISMISSES the motion with prejudice.
Background
Movant pleaded guilty to unlawful reentry and was sentenced to 67 months in
prison. His direct appeal was dismissed as frivolous on March 9, 2016, see United States
v. Garcia-Grande, No. 15-10527 (5th Cir. Mar. 9, 2016), and he did not file a petition
for a writ of certiorari.
On July 31, 2017, Movant filed a motion to reopen his criminal case. See United
States v. Garcia-Grande, No. 3:14-cr-424-K (01), Dkt. No. 37. The Court construed his
motion as requesting relief under Section 2255 and provided the warnings required in
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Castro v. United States, 540 U.S. 375 (2003). See Dkt. No. 1. The Court further
instructed Movant to refile his motion on the Court’s standard Section 2255 form. See
id. Movant then filed this amended Section 2255 motion. See Dkt. No. 5. He argues
that his guilty plea was unknowing and involuntary because his counsel did not explain
to him “all the fact(s).” See id. at 7.
Because Movant’s Section 2255 motion appeared to be barred by the applicable
statute of limitations, the Court ordered him to show cause why his motion should not
be dismissed as time-barred. See Dkt. No. 6. Movant has not filed a response.
Statute of Limitations
Movant’s Section 2255 motion is barred by the one-year statute of limitations
codified in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
which the Court may consider sua sponte. See Day v. McDonough, 547 U.S. 198,
209-210 (2006) (addressing a similar provision applicable to state habeas petitions
under 28 U.S.C. § 2254). 28 U.S.C. § 2255(f) 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;
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(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.
Here, 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 June 7,
2016, when the ninety-day period to file a petition for a writ of certiorari expired. See
Clay v. United States, 537 U.S. 522, 527 (2003) (holding that “[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”). His statute
of limitations expired June 7, 2017, and his Section 2255 motion—filed on July 31,
2017—is time-barred absent equitable tolling.
“[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). “The doctrine of equitable tolling preserves a [party’s] claims when strict
application of the statute of limitations would be inequitable.” Davis v. Johnson, 158
F.3d 806, 810 (5th Cir. 1998) (quoting Lambert v. United States, 44 F.3d 296, 298 (5th
Cir. 1995)). It “applies principally where [one party] is actively misled by the [other
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party] about the cause of action or is prevented in some extraordinary way from
asserting his rights.” See Coleman v. Johnson, 184 F.3d 398, 402 (quoting Rashidi v. Am.
President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). In the context of a habeas petition
filed by a state prisoner, the Supreme Court has stated that a habeas petitioner is
entitled to equitable tolling only if he shows that: 1) he has been pursuing his rights
diligently, and 2) some extraordinary circumstance prevented a timely filing. Holland v.
Florida, 130 S. Ct. 2549, 2562 (2010), citing Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005).
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. Because Movant has not met his burden
to establish circumstances warranting equitable tolling, his Section 2255 motion is
time-barred.
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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 15th, 2017.
ED KINKEADE
UNITED STATES DISTRICT JUDGE
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