Opinion
NO. 2012-CA-000449-MR
02-01-2013
EMILIO CAMESO REYES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Emilio Cameso Reyes, Pro Se Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 01-CR-00705
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Emilio Cameso Reyes brings this pro se appeal from a February 6, 2012, order of the Fayette Circuit Court, summarily denying a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion. We affirm.
Appellant was convicted by a jury of murder and tampering with physical evidence. By final judgment entered July 2, 2002, appellant was sentenced to life imprisonment. Appellant then pursued a direct appeal of his conviction and sentence of imprisonment, and the Supreme Court affirmed in Appeal No. 2002-SC-0600-MR rendered October 23, 2003.
Some eight years later, on September 6, 2011, appellant filed an RCr 11.42 motion seeking to vacate his conviction and sentence of imprisonment. By order entered February 6, 2012, the circuit court denied the RCr 11.42 motion as untimely per RCr 11.42(10). This appeal follows.
Appellant contends that the circuit court erred by denying his RCr 11.42 motion as untimely. Appellant argues that the three-year limitations period of RCr 11.42(10) is tolled because of his inability to understand the English language and cites to RCr 11.42(10)(a). In particular, appellant maintains that RCr 11.42(10)(a) is applicable because:
(1) Appellant is a [C]uban immigrant who was only in the U.S. a short period of time before being charged, tried and convicted of the offenses of murder and tampering with physical evidence; (2) Several interpreters were used during Appellant's trial due to the fact that he neither spoke nor read [E]nglish; (3) Neither of the institutions Appellant was interned, the Assessment Center at Roederer Correctional Center or the Kentucky State Penitentiary at Eddyville, Kentucky, had legal staff or legal aides who spoke [S]panish, nor did either institution offer classes in [E]nglish as a second language; and finally, (4) Neither institution had law books, legal forms or e[ve]n correctional policies and procedures written in [S]panish, leaving Appellant with no knowledge of RCr 11.42 or the three year statute of limitations contained in subsection (10)(a).For the foregoing reasons, we disagree and believe that appellant's RCr 11.42 motion was time-barred.
RCr 11.42(10)(a) reads:
(10) Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:Here, appellant is alleging that he was unaware of the three-year limitation period of RCr 11.42(10)(a) because he could not understand English. In essence, appellant is claiming that his ignorance of the three-year limitation period is a sufficient basis to permit tolling such limitation period per RCr 11.42(10)(a). However, under RCr 11.42(10)(a), tolling is permissible only when "facts" were unknown and could not have been reasonably ascertained by movant. Appellant is not asserting that he was unaware of facts but rather is asserting that he was unaware of the requirements of the law as set forth in RCr 11.42(10)(a). Appellant's ignorance of the law is not a proper ground for tolling the limitation period under RCr 11.42(10)(a). Consequently, we hold that the circuit court properly denied appellant's RCr 11.42 as time-barred.
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence[.]
For the foregoing reasons, the Order of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Emilio Cameso Reyes, Pro Se
Eddyville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky