Burciaga v. USA

Filing 2

ORDER directing petitioner to submit an affidavit by 6/23/2014 setting forth specific facts about what he said to his trial lawyer about appealing his conviction, the efforts he made to learn the status of his appeal, why he could not have learned earlier than May of 2014 that his lawyer never filed an appeal, and what claims he wishes to raise on appeal. Signed by District Judge Barbara B. Crabb on 5/16/2014. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
ORDER
Plaintiff,
14-cv-347-bbc
11-cr-93-bbc
v.
NORBERTO BURCIAGA,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Defendant Norberto Burciaga has filed a motion for post conviction relief under 28
U.S.C. § 2255. Among other things, he asserts that his counsel failed to file a notice of
appeal on his behalf although defendant asked him to do so following his sentencing on
March 14, 2012.

He states that he missed the deadline to file a timely § 2255 petition

because he did not find out until just recently that his appeal had not been filed. I will
construe his motion as including a request to file an untimely motion under 28 U.S.C. §
2255.
Section 2255 has only limited opportunities for extending the time for filing. The
statute allows a year for filing, with the year starting to run from the latest of (1) the date

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on which the defendant’s conviction becomes final; (2) the date on which any impediment
to the filing of the motion has been removed, provided that the impediment was an illegal
one created by government action and one that actually prevented the defendant from filing
his motion; (3) the date on which the right asserted was recognized initially by the Supreme
Court, provided that the right was both newly recognized by the Court and made
retroactively applicable to cases on collateral review; or (4) the date on which the defendant
could have discovered the facts supporting his claims through the exercise of due diligence.
Defendant was sentenced on March 14, 2012. His one-year period for filing a § 2255
motion expired one year and fourteen days afterwards. (The filing period began to run at
the end of the fourteen day period in which he could have taken a direct appeal under Fed.
R. App. P. 4(b)(1)(A)(I).) Therefore, defendant had until March 28, 2013, in which to file
a § 2255 motion. Since he missed that deadline, he is barred from filing unless he can show
that despite his best efforts, he was unable to find out that his counsel had not filed an
appeal any earlier than May of 2014. If he can make that showing, his § 2255 motion will
be considered timely.
It is defendant’s job to show that he could not have filed his motion any sooner, even
with the exercise of due diligence. Montenegro v. United States, 248 F.3d 585, 590-93 (7th
Cir. 2001). I cannot tell from defendant’s statement what specific steps he took to find out
the status of his appeal, such as writing the court to ask whether an appeal had been filed.
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It is questionable whether defendant can make the necessary showing. He says that “When
it became evident that no such pending appeal were submitted, Movant, with the aid of
prison tutors and law library staff, pursued his due process rights. Over such time, within
two institutions, Movant researched his case and now presents the instant motion for the
Court’s review.” Defendant does not indicate specifically when he discovered the appeal was
not filed and what steps he took before that time, and when, to check on the status of his
appeal. I will give defendant an opportunity to show why his motion was filed so late. At
the same time, he should explain to the court how he can show either that he had good
reasons for appealing, that his reasons were not legally frivolous or that he reasonably
demonstrated to his counsel that he was interested in appealing. Bednarski v. United States,
481 F.3d 530, 536 (2007) (citing Roe v. Flores-Ortega, 528 U.S. 470, 479-80 (2000)).

ORDER
IT IS ORDERED that defendant Norberto Burciaga may have until June 23, 2014,
in which to submit an affidavit setting forth the specific facts about what he said to his trial
lawyer about appealing his conviction, the efforts he made to learn the status of his appeal
from his conviction and why he could not have learned earlier than May of 2014 that his
trial lawyer never filed an appeal on his behalf, however hard he might have tried, and what

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claims he wishes to raise on appeal.
Entered this 16th day of May, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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