Villalobos v. United States of America

Filing 2

ORDER signed by Judge J.P. Stadtmueller on 3/30/2018: DENYING 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to Section 2255; DISMISSING CASE with prejudice; and DENYING Certificate of Appealability. (cc: all counsel, via mail to Alejandro Villalobos at Ray Brook FCI)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALEJANDRO VILLALOBOS,
Petitioner,
v.
UNITED STATES OF AMERICA,

Case No. 18-CV-482-JPS
Crim. Case No. 15-CR-51-4-JPS

ORDER

Respondent.
Petitioner Alejandro Villalobos was indicted in March 2015 for a
number of armed robberies in metropolitan Milwaukee. United States v.
Alejandro Villalobos, 15-CR-51-4-JPS (E.D. Wis.) (Villalobos’ “Criminal
Case”), (Docket #1). On September 15, 2015, he pleaded guilty to seven
counts of a superseding indictment: five for Hobbs Act robbery, in violation
of 18 U.S.C. §§ 1951(a) & 2, and two for brandishing a firearm in connection
with some of those robberies, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) &
2. Id., (Docket #96 and #101). On January 14, 2016, the Court sentenced him
to fifteen years’ imprisonment. Id., (Docket #154). Villalobos did not appeal
his convictions or sentence. He filed a motion pursuant to 28 U.S.C. § 2255
to vacate his convictions on March 27, 2018. (Docket #1). That motion is now
before the Court for screening:
If it plainly appears from the motion, any attached
exhibits, and the record of the prior proceedings that the
moving party is not entitled to relief, the judge must dismiss
the motion and direct the clerk to notify the moving party. If
the motion is not dismissed, the judge must order the United
States Attorney to file an answer, motion, or other response
within a fixed time, or to take other action the judge may
order.

Rule 4(b), Rules Governing Section 2255 Proceedings.
The Court begins by addressing the timeliness of Villalobos’ motion.
Section 2255(f) provides that there is a one-year limitations period in which
to file a motion seeking Section 2255 relief. That limitations period runs
from the date on which the judgment of conviction becomes final. “[T]he
Supreme Court has held that in the context of postconviction relief, finality
attaches when the Supreme 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.’” Robinson v. United States, 416 F.3d
645, 647 (7th Cir. 2005) (internal citations omitted). In the absence of an
appeal, Villalobos’ conviction became final on January 14, 2017. His instant
motion was filed more than fourteen months after that date.
Though Villalobos appears to have missed his deadline for filing his
motion, that does not end the Court’s analysis. There are two common-law
exceptions that still might apply to render Villalobos’ petition timely: the
“actual innocence” gateway and equitable tolling. The actual innocence
gateway allows excuse of a procedural default when a petitioner “‘presents
evidence of innocence so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the trial was free
of nonharmless error.’” Gladney v. Pollard, 799 F.3d 889, 896 (7th Cir. 2015)
(quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)). In other words, to be
entitled to the actual innocence gateway, Villalobos must show that new
evidence makes it unlikely that he would have been found guilty. Id. at 896.
All of Villalobos’ grounds for relief are assertions that he received
ineffective assistance of counsel. See (Docket #1 at 6–9). None of the grounds
even mention innocence, so it appears he is not asserting such a claim.

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The second potential exception is “equitable tolling.” See United
States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). Equitable tolling can
excuse an untimely petition if the petitioner establishes “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Socha v. Boughton, 763 F.3d
674, 683 (7th Cir. 2014) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).
“[T]he threshold necessary to trigger equitable tolling is very high,” and it
is “an extraordinary remedy [which] is rarely granted.” Marcello, 212 F.3d
at 1010; Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013). Even where it
applies, equitable tolling can only offer a “brief extension of time during
which a late filing will be accepted.” Gray v. Zatecky, 865 F.3d 909, 912 (7th
Cir. 2017). The Seventh Circuit has held that a petition which was just two
months late could not be saved by equitable tolling. Gladney, 799 F.3d at
894–95.
The activity (or lack thereof) in Villalobos’ criminal case reveals that
he could not carry his burden to establish the first element of equitable
tolling. True enough, Villalobos submitted a number of filings requesting
materials to file a Section 2255 motion and to obtain transcripts. Criminal
Case, (Docket #210, #214, #215, and #217). However, the first of these filings
came on April 3, 2017, almost three months after the limitations period had
already expired. Villalobos cannot possibly prove diligence when he
allowed fifteen months to pass without any court filings at all.
The subsequent timeline of events is worse still. Villalobos’ April 3,
2017 filing sought a blank form Section 2255 motion. Id., (Docket #210). He
did not actually file a Section 2255 motion in the following weeks or
months. Instead, eight months later, he requested another form motion,
complaining that his prior form had been lost upon his transfer to a new
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prison. (Docket #214). Villalobos’ final submissions came two months after
that, requesting sentencing transcripts and yet another form motion.
(Docket #215 and #217). Villalobos seems to have exercised almost no
diligence in pursuing post-conviction relief, much less reasonable diligence.
See Carpenter v. Douma, 840 F.3d 867, 871 (7th Cir. 2016) (petitioner was not
diligent, even after filing various motions to hold his request for habeas
relief in abeyance, when he waited until seven months beyond the
limitations period to file his petition for habeas relief).
Though it is rare for equitable tolling to be definitively absent on the
face of a habeas motion, see, e.g., Gildon v. Bowen, 384 F.3d 883, 886–87 (7th
Cir. 2004), the circumstances of this case warrant such a finding. Villalobos’
motion is plainly time-barred and cannot be saved by resort to equitable
principles. The Court is, therefore, is compelled to deny the motion and
dismiss this action with prejudice.1

The Court’s instant ruling does not reach the merits of Villalobos’ claims.
The Court nevertheless notes that some, if not all, of the asserted grounds for relief
are without any merit. As noted above, each ground seems to contend that
Villalobos’ trial counsel provided legal assistance so poor as to violate his Sixth
Amendment right to counsel. (Docket #1 at 6–9); Strickland v. Washington, 466 U.S.
668, 684–86 (1984). One ground claims that Villalobos’ counsel refused to file an
appeal despite his request for the same. This is flatly contradicted by the record in
the criminal case. At the sentencing hearing, the Court told Villalobos’ counsel,
with the defendant himself present, that he should consult with his client
regarding the possibility of an appeal. Criminal Case, (Docket #152 at 2). Counsel
was further instructed to file a letter with the Court if Villalobos decided not to
appeal. Id. His counsel filed such a letter that same day. (Docket #151). Villalobos
cannot return to court years after the fact to simply change his mind regarding an
appeal. Another ground asserts that Villalobos did not have counsel during a postarrest interrogation. (Docket #1 at 8). Such a claim was waived upon entry of the
plea agreement. United States v. Combs, 657 F.3d 565, 568–69 (7th Cir. 2011). These
are not definitive rulings on the merits of Villalobos’ claims, but they highlight two
points. First, Villalobos’ motion reads like the product of revisionist history, not
the assertion of meaningful constitutional concerns. Second, and more
1

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Under Rule 11(a) of the Rules Governing Section 2255 Cases, “the
district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Villalobos must make a
“substantial showing of the denial of a constitutional right” by establishing
that “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). No reasonable jurists could debate whether Villalobos’ motion
was timely. As a consequence, the Court is compelled to deny a certificate
of appealability as to Villalobos’ motion.
Finally, the Court closes with some information about the actions
that Villalobos may take if he wishes to challenge the Court’s resolution of
this case. This order and the judgment to follow are final. A dissatisfied
party may appeal this Court’s decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal within 30 days of
the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Fed. R.
App. P. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask
this Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil

importantly, there is no reason why Villalobos could not have brought these
claims long ago and within his limitations period. The facts underlying his claims
were always within his personal knowledge and required no post-conviction
investigation to uncover them.

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Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e)
must be filed within 28 days of the entry of judgment. The Court cannot
extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal
Rule of Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the judgment. The court
cannot extend this deadline. See id. A party is expected to closely review all
applicable rules and determine what, if any, further action is appropriate in
a case.
Accordingly,
IT IS ORDERED that Petitioner’s motion to vacate, set aside, or
correct his sentence pursuant to Section 2255 (Docket #1) be and the same
is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice; and
IT IS FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of March, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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