Opinion
EP-05-CA-0169-DB, EP-00-CR-1196-DB.
June 13, 2005
MEMORANDUM ORDER AND OPINION DISMISSING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
On this day, the Court considered Petitioner Pablo Hoffman-Portillo's ("Hoffman") Motion to Vacate, Set Aside or Correct Sentence ("Motion to Vacate") [Docket no. 59] pursuant to 28 U.S.C. § 2255, filed on May 4, 2005. After review, the Court finds that Hoffman's claims are time-barred and that he is not entitled to equitable tolling. Accordingly, the Court will dismiss Hoffman's Motion to Vacate with prejudice. The Court will further decline to certify his issues for appeal.
I. FACTS PROCEDURAL HISTORY A. Cause no. EP-00-CR-1196-DB
On July 19, 2000, the Grand Jury sitting in El Paso, Texas returned a two-count Indictment against Hoffman, charging him with importing a quantity of marijuana, in violation of 21 U.S.C. §§ 952 and 960 (Count One), and possessing a quantity of marijuana with the intent to distribute it, in violation of 21 U.S.C. § 841 (Count Two). The District Clerk assigned the case to then-United States District Judge Edward C. Prado ("Judge Prado"), who now sits on the Fifth Circuit Court of Appeals.
Hoffman, who posted bond, decided to stand trial. On December 13, 2000, after a threeday trial, the jury found him guilty on both Counts of the Indictment. Hoffman failed to appear for his sentencing on March 12, 2001 and remained a fugitive until his arrest on September 5, 2002. Judge Prado entered Judgment on October 11, 2002, sentencing Hoffman to two 30 month terms of imprisonment and a 3-year terms of non-reporting supervised release, to run concurrently. Judge Prado directed, however, that Hoffman's two concurrent sentences in cause no. EP-00-CR-1196-DB should run consecutively with a sentence imposed in the District of New Mexico, in cause no. CR-02-00085. Judge Prado additionally ordered Hoffman to pay a $200 special assessment.
Hoffman timely appealed, arguing that Judge Prado abused his discretion when he denied Hoffman's motion for a new trial on the grounds of juror misconduct. The Fifth Circuit Court of Appeals rejected his claim and affirmed his conviction on August 14, 2003. The Supreme Court denied Hoffman's petition for a writ of certiorari on January 12, 2004.
B. Hoffman's Motion to Vacate pursuant to 28 U.S.C. § 2255
Hoffman raises two claims for relief. First, he contends that he was denied an evidentiary hearing (Claim One). Second, he asks this Court to make his sentences in cause no EP-00-CR-1196-DB run concurrently with the sentence imposed in New Mexico (Claim Two).
II. DISCUSSION
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that "if it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for summary dismissal and cause the movant to be notified." USCS § 2255 Proc. R. 4(b) (2004). After reviewing the prior proceedings, it is clear that Hoffman' claims are barred because his Motion to Vacate was untimely filed pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"). A. Timeliness under the AEDPA
In the AEDPA, Congress established a one-year limitation period for the filing of a motion to vacate sentence pursuant to § 2255. The AEDPA added a specific period of limitation provision governing motions to vacate, set aside or correct sentences, which states:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) 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;
(3) 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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C.A. § 2255 (West 2004).
Although the AEDPA describes four different events which could trigger the limitations period, the relevant time, for purposes of Hoffman's claims, is the date on which his Judgment became final. Here, Judgment became final on January 12, 2004, the date on which the Supreme Court denied his petition for certiorari review. Given this date, it was incumbent upon Hoffman to file his Motion to Vacate no later than January 12, 2005, one year after his Judgment became final. Here, Hoffman could have filed his Motion to Vacate no earlier than April 26, 2005, the date on which he signed it. His Motion to Vacate is thus untimely by approximately three-and-a-half a-half months.
The filing date for purposes of determining timeliness under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") is the date on which Petitioner placed his Motion to Vacate in the prison mail system. See Cousin v. Lensing, 310 F.3d 843, 847 (5th Cir. 2002); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998). Here, that date is presumptively April 26, 2005, the date on which Hoffman signed his Motion to Vacate.
B. Equitable Tolling
The AEDPA's one year statute of limitations is not jurisdictional and is subject to equitable tolling. Equitable tolling, however, is justified only in rare and exceptional circumstances. It is warranted only in situations where a petitioner is actively misled by the respondent or is prevented in some extraordinary way from asserting his rights. "The decision to invoke equitable tolling is left to the discretion of the district court" and reviewed only for an abuse of discretion.
See Cousin v. Lensing, 310 F.3d 843, 847-8 (5th Cir. 2002); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000).
See Cousin, 310 F.3d at 848.
See Salinas v. Dretke, 354 F.3d 425, 429 (5th Cir. 2004), cert. denied, 2004 U.S. LEXIS 3279 (May 3, 2004).
Cousin, 310 F.3d at 848.
"Whether [a criminal defendant] had effective assistance on direct appeal in state court is not relevant to the question of tolling the AEDPA's statute of limitations. A criminal defendant has a right to effective assistance of counsel on a first appeal as of right. An alleged violation of that right does not toll the AEDPA's statute of limitations." "[M]ere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified."
Molo, 207 F.3d at 775.
Cousin, 310 F.3d at 849.
Moreover, a petitioner's "claims of innocence do not preclude the dismissal of his petition as untimely." "A petitioner's claims of actual innocence are relevant to the timeliness of his petition if they justify equitable tolling of the limitations period. We have previously held that they do not." Similarly, a petitioner's ignorance or mistake is insufficient to warrant equitable tolling.
Id.
Id.
Id.
Here, Hoffman offers no reason for the lateness of his filing. While the Court is cognizant that Hoffman is unschooled in the law and proceeding pro se, Fifth Circuit precedent is clear that ignorance of the limitations period or mistake is not sufficient grounds for equitable tolling. The Court further finds that Hoffman has failed to demonstrate that he relied to his detriment on any affirmative, but incorrect representation by the Court, or that any party obstructed his attempts to obtain habeas relief. The Court therefore concludes that Hoffman has not shown, as it is his burden to do, that he is entitled to equitable tolling of the AEDPA's limitations period.
Id.
See id.
III. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5 th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253 (c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. at 484 (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Hoffman's pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue Hoffman a Certificate of Appealability regarding his claims for relief.
IV. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Pablo Hoffman-Portillo's Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. Accordingly, the Court enters the following orders:
1. Petitioner Pablo Hoffman-Portillo's Motion to Vacate, Set Aside or Correct Sentence [Docket no. 59] pursuant to 28 U.S.C. § 2255, filed on May 4, 2005, is DENIED and THIS ACTION IS DISMISSED WITH PREJUDICE.
2. Petitioner Pablo Hoffman-Portillo is DENIED a Certificate of Appealability.
3. All pending motions in this cause, if any, are DENIED AS MOOT.