Cao v. United States of America
MEMORANDUM AND OPINION entered as to Yintang Cao. Cao is not entitled to relief under 28 U.S.C. § 2255. His pending § 2255 motion is denied,(Docket Entry No. 53 in 4:13-cr-138-1), and the government's motion to dismiss, (Docket Entry No.56 in 4:13-cr-138-1), is granted. No certificate of appealability will issue. The § 2255 motion is denied and this civil action, No. 4:16-cv-2514, is dismissed. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA,
January 25, 2017
David J. Bradley, Clerk
CRIMINAL ACTION NO. H-13-138-1
CIVIL ACTION NO. H-16-2514
MEMORANDUM AND OPINION
In this§ 2255 motion, Yintang Cao challenges the April2014 judgment of conviction and
sentence in United States v. Yintang Cao, Case No. H-13-cr-138, in the Houston Division of the
United States District Court for the Southern District of Texas. (Docket Entry No. 53). Cao did not
appeal from that judgment. It became final in April20 14, when the time for filing a notice of appeal
expired. See FED. R. APP. P. 4(b)(l)(A). Cao filed his § 2255 Motion in August 2016, in Civil
Action No. H-16-2514. (Docket Entry No. 53). He alleges that he received ineffective assistance
because his attorney failed to inform him ofthe immigration consequences of pleading guilty. The
government filed a motion to dismiss. (Docket Entry No. 56).
The record shows that Cao filed his§ 2255 motion too late for the court to consider it on the
merits. For the reasons explained in more detail below, the government's motion to dismiss is
granted, the§ 2255 motion is denied, and Civil Action No. 16-2514 is dismissed.
On March 15, 2013, Cao was charged with one count of trafficking in counterfeit goods, in
violation of18 U.S.C. § 2320. (Docket Entry No. 1). At the rearraignment hearing, Cao was placed
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under oath. In an extensive colloquy, the court expressly addressed the immigration consequences
of his guilty plea, as follows:
THE COURT: You understand that because you're not [a] United States citizen and
you're pleading guilty to felonies, when you have finished serving whatever sentence
is imposed, you may well be deported, you may be unable to return to this country,
you may be unable to be considered for naturalization as a citizen of this country? Do
you understand that those are additional consequences of pleading guilty?
DEFENDANTCAO: (In English) Yes.
(Docket Entry No. 51, pp. 11-12).
Cao pleaded guilty under a written plea agreement on April 24, 2013. (Docket Entry No. 20).
On April 8, 2014, the court sentenced Cao to serve an 18-month prison term followed by two
years of supervised release, and to pay $207,742.52 in restitution. (Docket Entry No. 39). Final
judgment was entered on Aprilll, 2014. (Docket Entry No. 41 ). Cao did not appeal. (Docket Entry
No. 53). On August 10, 2016, Cao signed this § 2255 motion, which the district clerk filed on
The § 2255 Motion
Cao's § 2255 motion is reviewed under the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDP A"), which sets a one-year deadline for filing federal habeas petitions. The period
runs from the latest ofthe following dates:
the date on which the judgment of conviction becomes final;
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;
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; and
the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
u.s.c. § 2255(f).
The record shows no facts that trigger any subsection other than§ 2255(f)(l ). The judgment
became final onApril25, 2014, when the time for filing a notice of appeal expired. See FED. R.APP.
P. 4(b)(l)(A). Under 28 U.S.C. § 2255(f)(l), Cao had until April25, 2015 to move under§ 2255
to vacate his sentence. He filed his§ 2255 motion on August 15,2016, nearly 16 months after the
While AEDP A's filing provision is not jurisdictional and can be equitably tolled, that
extension occurs only "in rare and exceptional" circumstances. See Fisher v. Johnson, 174 F .3d 710,
711 (5th Cir. 1999). "[E]quitable tolling applies principally where the plaintiff is actively misled by
the defendant about the cause of action or is prevented in some extraordinary way from asserting
his rights." Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (internal quotes and citations
omitted). Equitable tolling is not available if a petitioner does not act diligently in attempting to
meet the one-year deadline. Coleman v. Johnson, 184 F.3d at 402. The petitioner has the burden
of proving a right to equitable tolling. Alexander v. Cockrell, 294 F .3d 626, 629 (5th Cir. 2002).
Cao missed the § 2255 filing deadline by over a year. He not only filed too late, he was so
late as to show a lack of diligence. No ground for equitable tolling is present, and his motion cannot
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Certificate of Appealability
A certificate of appealability is required before Cao may appeal. See Hallmark v. Johnson,
118 F.3d 1073, 1076 (5th Cir.) (§ 2254 and§ 2255 require a certificate of appealability), cert. denied
sub nom. Monroe v. Johnson, 522 U.S. 1003 (1997). "This is a jurisdictional prerequisite because
the COA statute mandates that' [u ]nless a circuit justice or judge issues a certificate of appealability,
an appeal may not be taken to the court of appeals .... "' Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (citing 28 U.S.C. § 2253(c)(l)).
A certificate of appealability will not issue unless the petitioner makes "a substantial showing
of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2). This requires the petitioner to
demonstrate "that reasonable jurists would find the district court's assessment of the constitutional
claims debatable or wrong." Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v.
McDaniel, 529 U.S. 473,484 (2000)). He must show "that reasonable jurists could debate whether
(or, for that matter, agree that) the[§ 2255 Motion] should have been resolved in a different manner
or that the issues presented were 'adequate to deserve encouragement to proceed further."'
Miller-El, 537 U.S. at 336.
A district court may deny a certificate of appealability on its own, without requiring further
briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). After carefully
considering the record, the court concludes that jurists of reason would conclude without debate that
Cao has not stated a valid claim for relief under § 225 5. A certificate of appealability will not issue.
Cao is not entitled to relief under 28 U.S.C. § 2255. His pending§ 2255 motion is denied,
(Docket Entry No. 53 in 4: 13-cr-138-1), and the government's motion to dismiss, (Docket Entry No.
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56 in 4:13-cr-138-1), is granted. No certificate of appealability will issue. The§ 2255 motion is
denied and this civil action, No. 4:16-cv-2514, is dismissed.
SIGNED on January 24, 2017, at Houston, Texas.
Lee H. Rosenthal
Chief United States District Judge
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