Perez v. USA

Filing 7

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION adopting 5 Report and Recommendations and denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Chief Judge John Preston Bailey on 12/7/2012. Copy mailed to pro se petitioner by certified mail return receipt.(cwm) (Additional attachment(s) added on 12/7/2011: # 1 Certified Mail Return Receipt) (cwm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

LUIS PEREZ,
Petitioner,
v.

CIVIL ACTION NO. 3:11-CV-56
CRIMINAL ACTION NO. 3:04-CR-57-01
(BAILEY)

UNITED STATES OF AMERICA,
Respondent.

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION
Introduction

On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation of United States Magistrate Judge David J. Joel. By Local
Rule, this action was referred to Magistrate Judge Joel for submission of a proposed report
and a recommendation (“R&R”). Magistrate Judge Joel filed his R&R on November 8, 2011
[Doc. 5; Cr. Doc. 164]. In that filing, the magistrate judge recommended that this Court
deny with prejudice Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence [Doc. 1;
Cr. Doc. 151].
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo

review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Joel’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b).
Petitioner timely filed his objections on November 22, 2011 [Cr. Doc. 169]. Accordingly,
this Court will review the portions of the R&R to which objection was made under a de novo
standard of review. The remaining portions of the R&R will be reviewed for clear error.
Factual and Procedural History
On November 24, 2004, the petitioner signed a plea agreement, pleading guilty to
a charge of distribution of 136.805 grams of cocaine base in violation of 21 U.S.C. §
841(a)(1) under Count 4 of the indictment [Cr. Doc. 21 at 1]. The plea agreement was filed
with the Court on November 29, 2004 [Cr. Doc. 24]. On June 3, 2005, the Court sentenced
the petitioner to an imprisonment term of 180 months [Cr. Doc. 69 at 4]. The petitioner did
not file a direct appeal [See docket sheet for 3:04-CR-57-01].
The petitioner filed his first motion to Vacate, Set Aside, or Correct a Sentence
pursuant to 28 U.S.C. § 2255 on August 21, 2006, on two grounds of ineffective assistance
of counsel: (1) the sentence imposed was breach of the plea agreement and (2) his
counsel did not file a direct appeal as the petitioner requested [Cr. Doc. 87 at 3-4]. The
Government responded that the petitioner’s motion was time barred because it was not
filed until August 21, 2006, more than one month after the one-year time limitation [Cr. Doc.
95 at 4]. In addition, the Government stated that the petition should be denied because the
petitioner “waived his right to seek habeas corpus relief under the terms of his plea
agreement [Id. at 4-7]. Even though the Government was moving to dismiss the petition,

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it still addressed the petitioner’s ineffective assistance of counsel claims [Id. at 7-16] and
request for an evidentiary hearing [Id. at 16]. The petitioner replied that the waiver was
void because it was not knowing and voluntary [Cr. Doc. 96 at 2-4] and that he is entitled
to an evidentiary hearing to prove facts supporting his claim [Id. at 10-11]. In addition, he
addressed his “points on [the] ineffective [assistance of] counsel” claims [Id. at 4-10]. The
petitioner did not attempt to refute the time-barred argument [See Doc. 96].
The matter was referred to a magistrate judge [Cr. Doc. 97], who issued a Report
and Recommendation that [the] § 2255 Motion be Denied [Cr. Doc. 99], stating that the
motion should be “denied and dismissed from the docket as untimely” [Id. at 4]. In making
this recommendation, the magistrate judge relied upon the one-year limitation period within
which to file any federal habeas corpus motions under the Anti-Terrorism and Effective
Death Penalty Act of 1996. See 28 U.S.C. § 2255(f).
The magistrate judge determined that ”[f]or federal prisoners, the time for filing a
direct appeal expires ten days after the written judgment of conviction is entered on the
criminal docket,” which was June 28, 2005 in Mr. Perez’s case [Cr. Doc. 99 at 9]. As such,
the petitioner’s conviction became final on July 8, 2005, when his time for filing a direct
appeal expired. Because the petitioner did not file his initial § 2255 motion by the July 8,
2006, deadline, the magistrate judge concluded that it was “clearly time barred” [Id.]. On
July 26, 2007, the petitioner filed a letter in response to the magistrate judge’s July 3, 2007,
Report and Recommendations [Cr. Doc. 101], in which he stated that he missed the July
8, 2006, filing deadline because he “was in the process of waiting for a reply from [his]
lawyer” [Id. at 1]. This Court entered an Order Adopting Report and Recommendation [Cr.
Doc. 102] on October 2, 2007, in which the petitioner’s § 2255 motion was denied for the
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reasons stated in the magistrate judge’s Report and Recommendation [Id. at 2]. The
petitioner appealed the denial to the Fourth Circuit Court of Appeals (“Fourth Circuit”) on
October 17, 2007 [Cr. Doc.105]. The Fourth Circuit dismissed the petitioner’s appeal on
April 21, 2008 [Cr. Doc. 117 at 2].
On July 15, 2011, petitioner filed another § 2255 motion [Doc. 1; Cr. Doc. 151]. The
respondent was not ordered to answer the motion [Doc. 5 at 1; Cr. Doc. 164 at 1]. The
magistrate judge entered his R&R on petitioner’s § 2255 motion on November 8, 2011
[Doc. 5; Cr. Doc. 164], stating that the case should be dismissed “as untimely and . . . for
lack of jurisdiction as a second or successive motion for which the petitioner did not receive
the Fourth Circuit[‘s] authorization to file” [Doc.5 at 6; Cr. Doc. 164 at 6]. The petitioner
filed his response thereto [Cr. Doc. 169] on November 22, 2011. In his response, the
petitioner objected to the magistrate judge’s conclusion and states that the “one-year time[
] limitation does not apply because he is making the motion pursuant to [18 U.S.C. §§
3582(c)(2) and 3553(a)]” [Id. at 1].
Applicable Law
Second or successive section 2255 motions are subject to certain restrictions.
Section 2255 provides the following:
A second or successive motion must be certified as provided in section 2244
by a panel of the appropriate court of appeals to contain- (1) newly discovered evidence that, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). If the first petition was dismissed on the merits, a second petition will
be considered successive. Harvey v. Horan, 278 F.3d 370, 379 (4th Cir. 2002) (citing
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Slack v. McDaniel, 529 U.S. 473 (2000)). A dismissal based upon statute of limitations
grounds is the equivalent of a dismissal on the merits. See Shoup v. Bell & Howell Co.,
872 F.2d 1178 (4th Cir. 1989); United States v. Flanory, 45 Fed.Appx. 456 (6th Cir. 2002);
and United States v. Casas, 2001 WL 1002511 (N.D. Ill. 2001). Furthermore, “a motion
directly attacking the prisoner’s conviction or sentence will usually amount to a successive
application . . ..” United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003). If a
petitioner has not obtained the required ”pre-filing authorization, the district court lacks
jurisdiction to consider an application containing . . . repetitive claims.” Id. at 205 (citing
Evans v. Smith, 220 F.3d 306, 325 (4th Cir. 2003)).
Discussion
The magistrate judge recommended that this Court “enter an Order DENYING WITH
PREJUDICE the petitioner’s motion, dismissing the case from the docket as untimely and
also for lack of jurisdiction as a second or successive motion for which the petitioner did not
receive the [Fourth Circuit’s’] authorization to file” [Doc. 1 at 6; Cr. Doc. 164 at 6 (emphasis
in original)].
Petitioner’s Objections
On November 22, 2011, the petitioner filed an objection to the magistrate judge’s
recommendation that his § 2255 motion be denied with prejudice on timeliness grounds [Cr.
Doc. 169 at 1].
I. One-Year Time Limitation
The petitioner argues that the “one-year time[ ] limitation does not apply” to his
proceeding [Cr. Doc. 169 at 1]. In support of his argument, he allegedly quotes a portion
of section 2255, stating that “[t]he motion shall be made within a reasonable time, and for
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the reason (1), (2), and (3) not more than one year after the judgment, order, or proceeding
was entered or taken . . .” [Id.]. He further states, without elaborating upon what these
“subsections” entail, that he “did not move [for] relief pursuant to [these subsections], thus
the one-year time[ ] limitation does not apply” [Id.]. However, this language is not present
under 28 U.S.C. § 2255. Moreover, § 2255(f) explicitly imposes a “1-year period of
limitation . . . to a motion under [section 2255] . . . .” 28 U.S.C. § 2255(f). As such, the
Court hereby OVERRULES the petitioner’s objection.
II. Sections 3582(c)(2) and 3553(a)
The petitioner further states that he is making his motion “pursuant to [18 U.S.C. §
3582(c)(2) and 3553(a)] . . .” [Cr. Doc. 169 at 1]. Section 3582, provides a limited process
by which a court may reduce the term of imprisonment for a defendant. See 28 U.S.C. §
3582(c)(2). However, the petitioner’s motion attacks the imposition of his sentence, which
falls under 28 U.S.C. § 2255. See 28 U.S.C. § 2255(a); see also Docs. 1 and 1-1; Cr.
Docs. 151 and 151-1]. The petitioner listed “whether petitioner is ‘actually innocent’ of a
sentence imposed that exceeds the maximum penalty authorized for a conviction” as the
sole ground for the motion [Doc. 1-1 at 4; Cr. Doc. 151-1 at 4]. Moreover, although he
referred to §§ 3582(c)(2) and 3553(a) in the text of his motion, he referred to his motion as
a “§ 2255 writ” [Doc. 1 at 6; Cr. Doc. 169 at 6] and completed a § 2255 Motion Form [Doc.
1-1; Cr. Doc. 151-1]. Furthermore, the petitioner filed his Motion to Reduce Sentence
Under 18 U.S.C. § 3582(c) [Cr. Doc. 146] as a separate filing on August 4, 2010, on which
this Court has already ruled [See Cr. Doc. 168]. As such, this Court finds that petitioner’s
motion is a § 2255 motion and hereby OVERRULES the petitioner’s objection. Moreover,
this Court finds that the petitioner’s motion is his second or successive § 2255 motion and
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should be dismissed for lack of jurisdiction because the petitioner has not obtained the
necessary “pre-filing authorization.” See Harvey, 278 F.3d at 379; Shoup, 872 F.2d 1178;
and Winestock, 340 F.3d at 205.
Conclusion
Upon careful review of the report and recommendation, it is the opinion of this Court
that the magistrate judge’s Report and Recommendation [Doc. 5; Cr. Doc. 164] should be,
and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate
judge’s report. As such, this Court hereby DENIES WITH PREJUDICE the petitioner’s
Motion to Vacate, Set Aside, or Correct Sentence [Doc. 1; Cr. Doc. 151]. Accordingly, this
matter is hereby ORDERED STRICKEN from the active docket of this Court. The Clerk
is directed to enter a separate judgment in favor of the respondent.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: December 7, 2011.

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