Opinion
CV-20-00988-PHX-GMS (JZB) CR-16-00728-PHX-GMS-1
04-05-2021
Hugo Alejandro Navarro-Ramirez, Movant, v. United States of America, Respondent.
HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
Movant Hugo Alejandro Navarro-Ramirez has filed a Motion to Set Aside, Vacate, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) Because the motion is untimely, the Court recommends it be denied and dismissed with prejudice.
Citations to the docket in the present civil case will be cited as “Doc.” Citations to the docket in the underlying criminal case, CR-16-00728-PHX-GMS-1, will be cited as “CR Doc.”
I. Background.
On June 14, 2016, a federal grand jury indicted Movant on nine firearm-related offenses, including conspiracy, multiple counts of False Statement During the Purchase of a Firearm, Alien in Possession of a Firearm, and Possession of an Unregistered Firearm. (CR Doc. 3.) The charges resulted from Movant's involvement as a recruiter and organizer in the illegal purchase and transportation of firearms to Mexico. (CR Doc. 105.)
On July 11, 2017, Movant pleaded guilty under a Rule 11(c)(1)(C) Plea Agreement to Conspiracy (Count 1) and Possession of an Unregistered Firearm (Count 9). (CR Doc. 110 at 1.) Under the terms of the Plea Agreement, Movant waived his right to appeal and collaterally attack the judgment; however, he preserved his right to allege ineffective assistance of counsel. (Id. at 4-5.)
On December 13, 2017, the Court sentenced Movant to 60 months of imprisonment on Count 1 and 87 months on Count 9, to run concurrently, followed by 36 months of supervised release. (CR Doc. 111 at 1.) At sentencing, the Court advised Movant of his limited appeal rights. (Id. at 4.) Movant did not file any notice of appeal.
II. Motion to Vacate, Set Aside, or Correct Sentence.
On May 20, 2020, Movant filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) Therein, Movant claims ineffective assistance of counsel, alleging that he told his attorney that he wanted to appeal and that his attorney said he would file a motion on his behalf but never did. (Id. at 4.) Movant further alleges that his attorney made promises of a lesser sentence. (Id. at 5.)
III. Timeliness of the Motion.
“Under 28 U.S.C. § 2255(f), there is a one-year period of limitation to file a collateral attack on a federal conviction that runs from the latest of four events, including the date on which the judgment of conviction becomes final.” United States v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015); see 28 U.S.C. § 2255(f)(1). “[I]f the movant does not pursue a direct appeal to the Court of Appeals, the conviction becomes final when the time for filing a direct appeal expires.” Gilbert, 807 F.3d at 1199. “In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after the . . . entry of . . . the judgment.” Fed. R. App. P. 4(b)(1)(A). “[O]nce the time for filing a direct appeal . . . expires, the one-year limitation period under § 2255(f) is triggered.” Gilbert, 807 F.3d at 1200.
Here, Movant's motion is untimely. Movant was sentenced on December 13, 2017. Because he did not file a direct appeal, his sentence became final on December 27, 2017 - when the 14-day deadline for filing a direct appeal lapsed. See Id. at 1199. Accordingly, the one-year statute of limitations began to run on this date. See Id. at 1200. As a result, Movant had until December 27, 2018 to file a timely motion under 28 U.S.C. § 2255. However, he did not file the instant motion until May 20, 2020.
Movant is not entitled to equitable tolling because he has not demonstrated that extraordinary circumstances prevented him from filing a timely petition. “A Movant who seeks equitable tolling of AEDPA's one-year filing deadline must show that (1) some ‘extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights.” Holland v. Florida, 560 U.S. 631, 649 (2010). Movant argues that his counsel advised him not to file an appeal (doc. 1 at 5-8) and that he was waiting for counsel to send him his presentence report and “discovery paperwork” (id. at 9). Movant requests the Court order counsel to send him the presentence report and discovery. (Id.) But Movant could have filed this motion and made those requests within the one-year deadline for filing a habeas petition. Movant offers no excuse to explain why he delayed more than a year past the filing deadline to file the Motion. Movant's pro se status and unfamiliarity with the law do not excuse his failure to comply with 28 U.S.C. § 2244(d)'s one-year statute of limitations. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A] pro se Movant's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”). Therefore, the motion is untimely and consequently barred from this Court's consideration.
IT IS THEREFORE RECOMMENDED that Movant's Motion to Set Aside, Vacate, or Correct Sentence pursuant to 28 U.S.C. § 2255 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be DENIED because the motion is procedurally barred, and reasonable jurists would not debate that conclusion.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.