Burciaga v. USA
ORDER denying as untimely 1 Motion for Post Conviction Relief under 28 U.S.C. § 2255. No certificate of appealability shall issue. Signed by District Judge Barbara B. Crabb on 8/29/2014. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - On May 3, 2014, defendant Norberto Burciaga filed a motion for post conviction
relief under 28 U.S.C. § 2255. The motion was untimely; defendant had been sentenced in
this court on March 14, 2012; his conviction became final 14 days later when he failed to
file an appeal. His deadline for filing a post conviction motion was March 28, 2013.
Defendant was given an opportunity to explain why he did not file earlier. He
responded with an affidavit in which he averred that he had asked his lawyer to file an
appeal; his lawyer agreed to do so and told defendant that it would be about a year before
the appeal was decided. Defendant wrote to the Eastern District of Wisconsin to ask about
the matter in April 2012 but was told that the court had no record of his case. Defendant
filed a copy of an undated letter he said he sent to his lawyer asking about the case; the letter
was never answered.
Because defendant’s affidavit raised questions about the efforts he took to find out
the status of his appeal, a hearing was held on August 28, 2014. The government was
represented by Assistant United States Attorney Robert Anderson. Defendant was present
in person and with his appointed counsel, Peter Bartelt.
From the record and from the evidence adduced at the hearing, I find the following
Defendant was charged in an indictment returned in 2011 with three counts
involving marijuana: conspiring to manufacture and distribute it; manufacturing it; and
possession with intent to distribute it. The marijuana growing operation took place in a
national forest in northern Wisconsin; defendant’s role in the conspiracy was to transport
food and supplies to the campsite where his coconspirators were tending the marijuana crop.
The evidence against defendant was so strong that it left no room for any defense.
Among other evidence, the government had videotapes of defendant arriving with supplies
being met by armed coconspirators. Rivers told defendant that his only chance of reducing
the 10-year mandatory minimum sentence to which he was subject was to cooperate with
the government, which he did. Unfortunately, defendant’s cooperation never produced any
information that the government found helpful; as a result, the government had no reason
to seek a sentence reduction under Fed. R. Crim P. 35(b). He later pleaded guilty, without
a plea agreement, avoiding the possibility that the government would file a § 924 charge
against defendant on the ground that he knew that his coconspirators were armed. In
February 2012, he was sentenced to the mandatory minimum sentence of ten years. His
counsel did not file a notice of appeal.
Defendant was transferred promptly from Dane County, Wisconsin, to the Federal
Correctional Institution at Sandstone, Minnesota, and eventually to the prison camp at
Duluth, Minnesota. At both places, he was able to use the law library and obtain assistance
from prison tutors who helped inmates with legal matters.
Defendant never asked Rivers to file an appeal and never asked him, either by letter
or telephone, whether he had done so. (The letter he says he sent Rivers does not contradict
this finding; Rivers testified that no such letter was ever received by his office and described
the procedures the office follows to track incoming mail and telephone calls.) Rivers never
asked defendant whether he wanted to take an appeal. Defendant never checked with this
court or with the Court of Appeals for the Seventh Circuit about the status of any appeal.
However, two of his brothers and a sister talked with Rivers on several occasions to check
on the status of a downward reduction in their brother’s sentence for his cooperation.
At the time he was charged in this court, defendant was able to read and speak
English. He and Rivers discussed the charges against him on several occasions; Rivers read
the plea offers made by the government to defendant more than once and explained the
advantages and disadvantages of pleading with an agreement or without one.
reviewed the extensive discovery in the case and discussed it with defendant, telling him why
Rivers believed that it would not to possible to defend the case. Defendant’s testimony to
the contrary was not believable, particularly when he testified that he could not read English,
that his counsel did not consult with him before entered his plea of guilty, that his counsel
did not send him a copy of the presentence report and that he asked his counsel to take an
appeal of his sentence. He demonstrated during the hearing that he could read English and
understand it; his suggestion that he was able to read his presentence report only because his
sister sent it to him at the jail is not credible. It is not the practice of this district’s probation
officer to disseminate copies of presentence reports to family members or to allow them to
be sent to a prisoner in custody.
As for whether defendant took all the steps of which he was capable to determine the
status of his appeal, the record shows that this claim is unfounded. Defendant sent only one
letter and that one was to the wrong court and contained no inquiry about an appeal but
asked only for a copy of the docket sheet and the judgment and commitment. Defendant’s
testimony showed that he was capable of obtaining legal help while he was incarcerated and
that he began getting such help from the time he arrived at Sandstone.
It is uncontested that defendant’s counsel never asked defendant about taking an
appeal. Although it is always better if counsel does inquire of his client whether he wishes
to appeal, the Supreme Court has declined to hold that counsel’s failure to consult with his
client about an appeal is necessarily unreasonable. Roe v. Flores-Ortega, 528 U.S. 470, 47677 (2000).
A defendant cannot show ineffective assistance under the first prong of
Strickland v. Washington, 466 U.S. 668 (1984), unless he can show either that a rational
defendant would have wanted to appeal or that he“reasonably demonstrated to counsel that
he was interested in appealing.” Flores-Ortega, 528 U.S. at 479-80. Defendant made
neither of these showings. His testimony that he asked his lawyer to take an appeal is not
credible. As his lawyer explained in his testimony at the hearing, both he and his client
understood that the government’s case against defendant was too strong to contest and
relied instead on obtaining a reduction in the mandatory minimum sentence through
Under the circumstances, it is not surprising that defendant took no steps to check
on the status of his supposed appeal in this court or in the court of appeals and that he asked
his siblings to check on the status of any motion for a reduction of sentence because of his
cooperation. He had not asked his lawyer to file an appeal but had counted instead on
obtaining a sentence reduction. I conclude that defendant has failed to make the necessary
showing that he is entitled to an extension of time in which to file his motion for post
Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must
issue or deny a certificate of appealability when entering a final order adverse to a defendant.
To obtain a certificate of appealability, the applicant must make a "substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S.
274, 282 (2004). This means 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 quotations and citations omitted). In this
case, defendant has not made the necessary showing, so no certificate will issue. Although
the rule allows a court to ask the parties to submit arguments on whether a certificate should
issue, it is not necessary to do so in this case because the question is not a close one.
Petitioner is free to seek a certificate of appealability from the court of appeals under Fed.
R. App. P. 22, but that court will not consider his request unless he first files a notice of
appeal in this court and pays the filing fee for the appeal or obtains leave to proceed in forma
IT IS ORDERED that defendant Norberto Burciaga has failed to show that he could
not have filed a timely motion for postconviction relief under 28 U.S.C. § 2255.
Accordingly, his motion, dkt. #213 (11-cr-93-bbc) is DENIED as untimely. No certificate
of appealability shall issue. Defendant may seek a certificate from the court of appeals under
Fed. R. App. P. 22, as explained above.
Entered this 29th day of August, 2014.
BY THE COURT:
BARBARA B. CRABB
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