Opinion
CV-21-2233-PHX-SRB (DMF) CR-99-00734-PHX-SRB
10-18-2023
United States of America, Plaintiff/Respondent, v. Carlos Garcia-Mesa, Defendant/Movant.
HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
On June 27, 2021, the Ninth Circuit Court of Appeals authorized Carlos Garcia-Mesa (“Movant” and/or “Garcia-Mesa”) to file a successive motion pursuant to 28 U.S.C. § 2255. (CV Doc. 37 at 2) On July 7, 2022, the Court directed Movant to file a successive motion pursuant to 28 U.S.C. § 2255 asserting any claim authorized by the Ninth Circuit. (CV Doc. 39) Through appointed counsel, Movant thereafter filed a successive motion pursuant to 28 U.S.C. § 2255 (“§ 2255 Motion”). (CV Doc. 48) The Court ordered the United States of America (“Respondent” or “United States”) to file an answer to the February 28, 2023, § 2255 Motion. (CV Doc. 49) The § 2255 Motion is fully briefed. (CV Docs. 48, 52, 55, 59)
Citations to the record indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona. Citations to documents within Movant's criminal case CR-99-00734-PHX-SRB are denoted “CR Doc.” Citations to documents in Movant's instant § 2255 matter CV-21-2233-PHX-SRB (DMF) are denoted “CV Doc.”
This matter is on referral to undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. (CV Doc. 49 at 3)
For the reasons set forth below, it is recommended that the § 2255 Motion be denied and dismissed with prejudice and that a certificate of appealability be denied.
I. PERTINENT PROCEDURAL HISTORY
On August 15, 2000, Movant was named in a third superseding indictment charging him with, as relevant here, conspiracy to commit hostage-taking resulting in death in violation of 18 U.S.C. § 1203 (Count 1); hostage-taking resulting in death in violation of 18 U.S.C. § 1203 (Counts 2-11); and using, carrying, brandishing, and discharging several different firearms during and in relation to a crime of violence-the hostage-taking charged in Counts 1-11-in violation of 18 U.S.C. § 924(c) (Counts 31-40). (CR Doc. 128 at 2-6, 17-23)
A trial jury found Movant guilty of conspiracy to commit hostage-taking resulting in death as charged in Count 1, hostage-taking resulting in death as charged in Counts 211, and brandishing and discharging firearms during and in relation to hostage-taking as charged in Counts 31-40. (CR Doc. 305) The jury made special findings that Movant was responsible for brandishing certain firearms and discharging others, and also specifically found that Movant's hostage-taking conspiracy and hostage-taking resulted in the deaths of three persons. (CR Doc. 305 at 1-16) For the substantive hostage-taking resulting in death and conspiracy counts, Movant was sentenced to life imprisonment, the mandatory term under 18 U.S.C. § 1203(a). (CR Doc. 390 at 2-3) Movant was also sentenced to permissive life sentences of imprisonment for the conspiracy, transporting, and harboring illegal aliens resulting in death convictions. (CR Doc. 390 at 2- 3) In addition, Movant was sentenced to a ten-year imprisonment sentence on the 18 U.S.C. § 924(c) charge in Count 31, consecutive to Movant's life imprisonment terms, and twenty-five years consecutive imprisonment sentences on each of the 18 U.S.C. § 924(c) charges in Counts 32-40. (CR Doc. 390 at 3; see also CR Doc. 337) Therefore, the total sentence imposed upon Movant was life plus a consecutive 235 years. (CR Doc. 390 at 3)
Although not at issue here, Movant was also convicted of the conspiracy and interstate communications charges in Counts 17-27. (CR Doc. 305 at 2) Further, the jury verdicts regarding Counts 41 and 44-50 did not result in a sentence imposed on Movant. See CR Docs. 337, 390.
Although not at issue here, Movant was also sentenced to concurrent twenty-year sentences for the conspiracy and interstate communications convictions in Counts 17-27. (CR Doc. 390 at 2-3)
Movant appealed, raising claims related to the Confrontation Clause, Federal Rule of Evidence 404(b), the introduction of party admissions and inextricably intertwined evidence, and cumulative error. United States v. Torres-Espinoza, 78 Fed.Appx. 563 (9th Cir. 2003). The Ninth Circuit affirmed on October 9, 2003. Id. Thereafter, one of Movant's co-defendants filed a petition for panel rehearing and petition for rehearing en banc on November 3, 2003, which was denied by the Ninth Circuit on December 4, 2003. (CR Doc. 608 at 2) Movant did not file a petition for writ of certiorari to the United States Supreme Court. (Id.)
On March 22, 2005, Movant filed a motion pursuant to 28 U.S.C. § 2255 alleging a violation of his consular rights and also alleging ineffective assistance of counsel. (CR Doc. 529) Movant's motion was denied as untimely because Movant's filing deadline under the one-year statute of limitations after his judgment of conviction became final was March 3, 2005. (CR Doc. 608 at 2-5) The Ninth Circuit denied a certificate of appealability. United States v. Garcia-Mesa, No. 07-17339, Doc. 6 (9th Cir. Dec. 10, 2008).
In April 2017, Movant filed a pro se “motion seeking to intervene” in his criminal case, referencing Johnson v. United States, 576 U.S. 591 (2015), in the motion. (CR Doc. 697 at 1-2) This Court denied the motion but declined to construe it as a motion pursuant to 28 U.S.C. § 2255 because it would be a second-or-successive motion for which Movant had not obtained Ninth Circuit certification. (CR Doc. 699 at 1-2) The Court ordered the Clerk of Court to send Movant an approved form for an application for leave to file a second-or-successive motion pursuant to 28 U.S.C. § 2255. (CR Doc. 699 at 2) Movant did not thereafter apply to the Ninth Circuit for leave to file a second-or-successive motion pursuant to 28 U.S.C. § 2255.
On June 9, 2021, Movant signed another motion pursuant to 28 U.S.C. § 2255, which was filed in this Court, this time raising a claim that his 18 U.S.C. § 924(c) convictions were unconstitutional under United States v. Davis, 139 S.Ct. 2319 (2019). (CR Doc. 765 at 1-3) This Court denied the motion because it was Movant's third motion pursuant to 28 U.S.C. § 2255, but Movant had failed to obtain authorization from the Ninth Circuit Court of Appeals to file the successive motion pursuant to 28 U.S.C. § 2255. (CR Doc. 766 at 1-2) This Court further ordered that Movant's motion pursuant to 28 U.S.C. § 2255 be transmitted to the Ninth Circuit. (Id.) The Ninth Circuit appointed counsel for Movant, and counsel supplemented Movant's application for a second-or-successive motion pursuant to 28 U.S.C. § 2255, arguing that hostage-taking was no longer a crime of violence after Davis because hostage-taking could be accomplished without force or threats of force. (CV Doc. 52-1; see also CV Doc. 37 attachments) The United States opposed authorization because (1) Movant had previously raised a Johnson claim in his 2017 motion to intervene, showing it was not “previously unavailable” to him, and (2) hostage-taking resulting in death convictions demand an additional element beyond ordinary hostagetaking (i.e., that death results) that satisfies the use-of-force definition. (CV Doc. 52-1; see also CV Doc. 37 attachments) The United States explicitly preserved a time-bar argument based on Movant's failure to file his motion within a year of the Supreme Court's decision in Davis. (CV Doc. 52-1; see also CV Doc. 37 attachments) Although Borden v. United States, 142 S.Ct. 1817 (2021), had been decided before Movant filed his Ninth Circuit application, Movant did not raise Borden in his arguments for authorization. (CV Doc. 521; see also CV Doc. 37 attachments) On June 27, 2022, the Ninth Circuit authorized Movant to file a successive motion pursuant to 28 U.S.C. § 2255 based on Davis. (CV Doc. 37)
The Ninth Circuit could not preclude the 2021 motion pursuant to 28 U.S.C. § 2255 as time-barred in the course of determining whether to certify under 28 U.S.C. § 2255(h)(2). See Turner v. Baker, 912 F.3d 1236, 1240-41 (9th Cir. 2019), cert. denied, 140 S.Ct. 306 (2019).
II. PENDING MOTION PURSUANT TO 28 U.S.C. § 2255
On February 28, 2023, after Movant's previous habeas counsel passed away, new counsel filed the amended successive motion pursuant to 28 U.S.C. § 2255 (“§ 2255 Motion”), which is before the Court. (CV Doc. 48) In the § 2255 Motion, Movant raised a challenge pursuant to Davis and pursuant to Borden, but did not address timeliness of the § 2255 Motion despite that the United States had previously and expressly preserved raising an untimeliness defense in this Court in the event that the Ninth Circuit authorized the filing of a second-or-successive motion pursuant to 28 U.S.C. § 2255 based on Davis. (Id.)
The United States responded in opposition that the § 2255 Motion should be denied and dismissed with prejudice (1) as untimely as to Davis under 28 U.S.C. § 2255(f)(3) because Movant initiated these proceedings more than a year after the Supreme Court's decision in Davis; and (2) as non-cognizable as to Borden because this matter comes before the Court on a successive motion pursuant to 28 U.S.C. § 2255. (CV Doc. 52) In its response, the United States addressed Movant's failure to raise equitable tolling regarding his Davis claim in his § 2255 Motion:
To the extent Garcia-Mesa may attempt to argue in a reply that his filing deadline is equitably tolled because he did not know that Davis had been decided, such a claim would be both waived and meritless. The government forecasted in the Ninth Circuit that it would be raising a timeliness argument and defense counsel responded to that argument. (AP-Doc. 21 (“Exhibit D”) at 11-12.) Then, although it is his burden to establish equitable tolling, see Hollandv. Florida, 560 U.S. 631, 649 (2010), Garcia-Mesa failed to address it in the operative amended successive § 2255 motion. Such a claim is waived. Mitchell v. United States, 971 F.3d 1081, 1084 n. 4 (9th Cir. 2020) (“The district court need not consider arguments raised for the first time in a reply brief.”) (quoting Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007)); United States v. Ngumezi, 980 F.3d 1285, 1287 (9th Cir. 2020) (noting that if government had argued defendant forfeited argument made for the first time in a footnote in a reply brief, “we would have been compelled to agree”). In any event, it is also meritless because ignorance of the law is not a basis for equitable tolling. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding a pro se petitioner's ignorance of the law and lack of legal sophistication “is not, by itself, an extraordinary circumstance warranting equitable tolling”); United States v. Peraza, 505 Fed.Appx. 700, 701 (10th Cir. 2012) (rejecting argument that petitioner was entitled to equitable tolling because he did not know about retroactive Supreme Court case because “ignorance of the law, even for an incarcerated pro se petitioner, ... is not
enough to support equitable tolling”) (quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)).(CV Doc. 52 at 6-7, footnote 3)
Movant's reply relied on Davis, but the reply did not cite or refer to Borden. (CV Doc. 55) In his reply and for the first time, Movant raised an equitable tolling argument.(Id.)
In Movant's reply in support of his application to the Ninth Circuit for authorization to file a successive motion pursuant to pursuant to 28 U.S.C. § 2255, Movant argued through counsel that the one-year limitations period had not yet run because there had been no express ruling as to Davis' retroactivity. (CV Doc. 52-1; see also CV Doc. 37 attachments) Nevertheless, the Ninth Circuit could not decide the timeliness or lack thereof of the 2021 motion in the course of determining whether to certify under 28 U.S.C. § 2255(h)(2). See Turner, 912 F.3d at 1240-41.
The Court allowed the United States to file a sur-reply addressing Movant's equitable tolling argument, and the United States did so. (CV Docs. 56, 57, 58, 59)
III. BORDEN V. UNITED STATES , 142 S.Ct. 1817 (2021)
Here, the Ninth Circuit authorized Movant to file a successive motion pursuant to 28 U.S.C. § 2255 based on Davis. The pending § 2255 Motion is the first time that Movant attempted to raise a Borden claim despite that Borden was decided on June 10, 2021, before Movant's filings through counsel at the Ninth Circuit seeking permission to file a successive motion pursuant to 28 U.S.C. § 2255. Movant lacks the required certification to raise a Borden claim in a successive motion pursuant to 28 U.S.C. § 2255. See 28 U.S.C. §§ 2244, 2255(h); United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998) (concluding that the district court lacked jurisdiction to consider a successive § 2255 motion when movant had failed to request certification from the appellate court prior to filing successive § 2255 motion in the district court).
Even where the Ninth Circuit has authorized a second or successive motion pursuant to 28 U.S.C. § 2255, “under section 2244(b)(4), a district court must conduct a thorough review of all allegations and evidence presented by the prisoner to determine whether the motion meets the statutory requirements for the filing of a second or successive motion.” United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000). The Ninth Circuit considered only whether Defendant had made a prima facie showing “of possible merit to warrant a fuller exploration by the district court.” Henry v. Spearman, 899 F.3d 703, 706 (9th Cir. 2018) (quoting Cooper v. Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004)) (emphasis in Cooper); 28 U.S.C. § 2244(b)(3)(C). This determination does not preclude a district court from determining whether the statutory threshold has been met. See Villa-Gonzalez, 208 F.3d at 1164 (“Villa-Gonzalez contends that our grant of permission forecloses the district court from finding his motion does not meet the statutory requirements. Villa-Gonzalez's contention lacks merit.”). To the contrary, the “district court must conduct a thorough review of all allegations and evidence presented by the prisoner to determine whether the motion meets the statutory requirements for the filing of a second or successive motion.” Id. at 1164-65 (emphasis added). The statute itself makes this clear: “A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” 28 U.S.C. § 2244(b)(4) (emphasis added).
Here, Movant's Borden claim does not meet the statutory requirements. In Jones v. United States, 36 F.4th 974, 986 (9th Cir. 2022), the Ninth Circuit squarely held that Borden does not provide a basis for certifying a second-or-successive § 2255 motion under §2255(h)(2) because “Borden did not announce a new ‘constitutional' rule.” 36 F.4th at 986. Instead, Borden “was a statutory-interpretation decision,” which “does not provide ‘a new rule of constitutional law' for [a movant] to make a prima facie showing under 28 U.S.C. § 2255(h)(2).” Id.; see also In re Rodriguez, 18 F.4th 841, 841 (5th Cir. 2021) (“Borden does not provide a basis [for] authorization under § 2255(h)(2) because it did not announce a new rule of constitutional law but instead addressed a question of statutory interpretation.”).
Further, the United States is correct in its argument that:
[t]he successive posture of Garcia-Mesa's motion distinguishes it from the cases on which he relies. He bases his motion on United States v. Ross, 969 F.3d 829 (8th Cir. 2020), cert. granted and vacated sub nom. King v. United States, 142 S.Ct. 332 (2021), and on remand, 2022 WL 4103064 (8th Cir. Sept. 7, 2022),
and United States v. Runyon, 994 F.3d 192, 200 (4th Cir. 2021). (CV-Doc. 48 at 4-8.) But neither case involved a successive petition and therefore did not implicate the court's second-or-successive gatekeeping requirement under 28 U.S.C. § 2244(b)(4). And, in any event Runyon held that conspiracy to commit murder for hire resulting in death is a crime of violence. See Ross, 969 F.3d at 836, 845 (affirming on direct appeal); Runyon, 994 F.3d at 202-04 (affirming in part denial of first § 2255 motion). Neither case supports Garcia-Mesa in this context.(CV Doc. 52 at 8) Notably, Movant did not cite or argue Borden in his reply. In any event, the pending § 2255 Motion should be denied insofar as it raises a claim based on Borden.
IV. UNITED STATES V. DAVIS, 139 S.Ct. 2319 (2019)
The United States Supreme Court decided Davis on June 24, 2019, triggering the one-year statute of limitations. Giving Movant the benefit of all doubt, the earliest date on which he could be considered to have filed these proceedings was June 9, 2021, the date he signed the successive motion pursuant to 28 U.S.C. § 2255 which this Court transferred to the Ninth Circuit Court of Appeals. Applying the one-year statute of limitations, the filing of these proceedings was over eleven months after the applicable deadline. Movant's § 2255 motion does not address the untimeliness of these proceedings. In reply, Movant acknowledges that June 9, 2021, is almost two years after the Davis decision, but requests that the Court apply equitable tolling to excuse the untimeliness of these proceedings. (CV Doc. 55 at 4)
Relying on Koerner v. Grigas, 328 F.3d 1039, 1048-49 (9th Cir. 2003), Movant argues that he did not waive his equitable tolling argument by first raising it in his reply in support of his § 2255 motion. Movant argues that the United States is not prejudiced by Movant raising the argument in reply, that waiver would result in manifest injustice to Movant, and that waiver does not apply because equitable tolling was addressed in the United States' response to the § 2255 motion.
The United States is not prejudiced by Movant raising equitable tolling in his reply for multiple reasons, including that the United States addressed equitable tolling in its response and that the United States was given opportunity to file a sur-reply relating to Movant's particular assertions regarding equitable tolling. Nevertheless, the United States is correct that:
[t]he reply brief's lack of any explanation for counsel's failure to argue equitable tolling earlier is independently fatal to the claim. The waiver of an equitable tolling argument may be excused, but only when “exceptional circumstances” themselves prevented a petitioner from raising the equitable claim earlier. See Sunrhodes v. Byrne, 693 Fed.Appx. 583, 584 (9th Cir. 2017). The reply, silent as to any impediment to raising equitable tolling in the amended motion, therefore waives equitable tolling twice over.(CV Doc. 59 at 2)Movant's new counsel was granted over three months in extensions of time to file the § 2255 motion, so the change in Movant's counsel due to previous counsel's death does not excuse the failure to argue equitable tolling in the § 2255 motion. (CV Docs. 42, 43, 44, 46, 47)
The United States supported this argument with additional cases finding equitable tolling waived under similar circumstances. (CV Doc. 59 at 2; see, e.g., Aparicio v. Baker, 544 Fed.Appx. 684, 685 (9th Cir. 2013); Madrid v. Ryan, No. CV-11-144-PHX-FJM, 2011 WL 5331688, at *2 (D. Ariz. Nov. 7, 2011).).
Yet, even if the equitable tolling argument were not waived, Movant has not established that extraordinary circumstances prevented him from filing a timely petition. In reply in support of the § 2255 Motion, Movant avers as basis for equitable tolling:
The government claims in that Garcia-Mesa's motion should be denied because he failed to file it within one year of the decision in Davis, which occurred on June 24, 2019. (Doc. 52, n. 3.) Garcia-Mesa submitted his motion on June 9, 2021, nearly two years after the Court handed down its decision. Undersigned counsel has discussed this matter with Garcia-Mesa through a Spanish-speaking interpreter. The reason for the delay is no fault of the movant. It is clear to counsel that Garcia-Mesa does not speak English, and, as he expressed, does not know the law. He stated that due to the COVID pandemic, there was a lock down at Atwater (USP) starting in 2018 and lasting for 1-1/2 years. When it ended, a bi-lingual, fellow inmate who knew of his case, told him about the change in the law (meaning about the Davis decision) and said he would write something to file in his case. During the lock down, no one had access to the prison library. After the lock down ended, the inmate went to the library and drafted the motion. Garcia-Mesa agreed that it should be filed.(CV Doc. 55 at 4) The United States is correct that Movant's representations are “conclusory” and do not provide the “detailed facts” necessary to support equitable tolling:
[Movant] does not provide a declaration, specific dates of the lockdown, any description of the restrictions on his contact with fellow inmates due to the lockdown, or an explanation of why he could not request Spanish-language materials without going to the library. Judges in the District of Arizona- including this Court-have consistently denied equitable tolling based on “self-serving” and “conclusory” statements like these. See, e.g., Taylor v. Shinn, No. CV-20-8207-PCT-SRB-MHB, 2021 WL 3116335, at *5 (D. Ariz. June 24, 2021), report and recommendation adopted, 2021 WL 3089124 (D. Ariz. July 22, 2021); Nieves v. Shinn, No. CV-19-4889- PHX-SPL-MHB, 2020 WL 2736719, at *4 (D. Ariz. Apr. 30, 2020), report and recommendation adopted, 2020 WL 2736009 (D. Ariz. May 26, 2020); Sarat-Rojop v. Brnovich, No. CV-21-11-TUC-JCH-JR, 2022 WL 3567259, at *3 (D. Ariz. July 26, 2022), report and recommendation adopted, 2022 WL 3552508 (D. Ariz. Aug. 18, 2022) (“Petitioner's curt assertion that he was unaware of his claims until a prison translator read his case fails to support equitable tolling.”).(CV Doc. 59 at 4)
Indeed, Movant's reply recognizes that to establish an entitlement to equitable tolling, Movant must surmount a “very high” threshold to show both that he diligently pursued the matter and that “extraordinary circumstances” prevented him from filing earlier. (CV Doc. 55 at 4 (citing United States v. Aguirre-Canceda, 592 F.3d 1043, 1045 (9th Cir. 2010); Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006))
While Movant is correct that the statute of limitations contained in 28 U.S.C. § 2255 is subject to equitable tolling, United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004), equitable tolling evaluation turns on “an examination of detailed facts,” Lott v. Mueller, 304 F.3d 913, 923 (9th Cir. 2002), and it is Movant's burden to supply those facts. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In addition, Movant must show that the extraordinary circumstances beyond his control “were the cause” of his inability to file on time. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013). Movant “must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Smith v. Davis, 953 F.3d 582, 598-99 (9th Cir. 2020) (en banc) (expressly rejecting the “stop-clock” approach to equitable tolling); see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is “unavailable in most cases,” and “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule”) (citations and internal emphasis omitted).
“Lack of English proficiency can constitute an extraordinary circumstance for equitable tolling purposes, but only when the petitioner is unable to procure legal materials in his own language or to obtain translation assistance.” Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014). The Ninth Circuit has “rejected a per se rule that a petitioner's language limitations can justify equitable tolling, but [has] recognized that equitable tolling may be justified if language barriers actually prevent timely filing.” Mendoza v. Carey, 449 F.3d 1065, 1069-70 (9th Cir. 2006). “[A] non-English-speaking petitioner seeking equitable tolling must, at a minimum, demonstrate that during the running of the AEDPA limitations period, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source.” Mendoza, 449 F.3d at 1070. Movant's representations, taken as true, do not even meet this required demonstration. Movant “has not explained his efforts to obtain Spanish-language materials outside of the law library, nor how [any] lockdown prevented him from seeking translation assistance from bilingual staff or inmates.” (CV Doc. 59 at 5)
Indeed, Movant has not set forth any efforts to obtain Spanish-language materials from the law library outside of any COVID lockdown timeframe. Davis was decided on June 24, 2019. There were over seven months between the Davis opinion and the COVID global pandemic. As explained by the United States:
COVID-19 was not declared a global pandemic until March 11, 2020, well after 2018. See WHO Director-General's opening remarks at the media briefing on COVID-19 - 11 March 2020, available at https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19- 11-march-2020. If the 18-month lockdown Garcia-Mesa refers to truly began because of the pandemic, it cannot have started until after that-nine months into the post Davis limitations period. Even under this timeline, then, Garcia-Mesa cannot show that he was exercising diligence, because he did not access the law library or seek translation from a bilingual inmate “during the running of the
time limitation.” Mendoza, 440 F.3d at 1070. And under this timeline-in which the lockdown would not have ended until September 2021-that he actually filed a motion to vacate in June 2021 undermines his claim that he was unable to do so until the lockdown ended. See Sarat-Rojop, 2022 WL 3567259, at *3 (holding petitioner failed to establish diligence in overcoming translation difficulties where he filed other pleadings during the time period he sought to equitably toll); Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014) (holding that because defendant received translation assistance on other filings during limitation period, “his lack of linguistic understanding could not have made it ‘impossible' for him to meet the deadline.”). Garcia-Mesa therefore has not established a causal link between his language abilities, the lockdown, and his failure to timely file after Davis.(CV Doc. 59 at 5-6)
Further, a general allegation of ordinary prison restrictions like a lockdown is insufficient to merit equitable tolling. Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). In addition, ignorance of the law or a “lack of legal sophistication” is not an extraordinary circumstance that warrants equitable tolling. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Ballesteros v. Schriro, 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner's pro se status, ignorance of the law, and lack of representation during the applicable filing period do not constitute extraordinary circumstances).
Even accepting Movant's assertion of a year and a half lockdown beginning in 2018, then most generously to Movant, if a lockdown started on December 31, 2018, and lasted a year-and-a-half, Movant could have filed a successive motion in July 2020. Yet, Movant did not initiate these proceedings until almost a year later in June 2021. Movant has not demonstrated diligence in returning to federal court after an impediment is removed. See Guillory v. Roe, 329 F.3d 1015, 1018 n.1 (9th Cir. 2003) (quoting Kelly v. Small, 315 F.3d 1063, 1071 (9th Cir. 2003)).
As explained above, Movant waived an equitable tolling argument. Even if not waived, Movant's reply assertions are insufficient. Movant's reply assertions fail to demonstrate diligence. Further, Movant's reply assertions do not establish a causal connection between the circumstances described and the late initiation of these proceedings. In sum, Movant does not meet the requirements for equitable tolling, let alone equitable tolling for a sufficient period to render these proceedings timely filed.
V. EVIDENTIARY HEARING
A movant seeking relief pursuant to 28 U.S.C. § 2255 is entitled to an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). The Ninth Circuit has construed this standard as requiring an evidentiary hearing where “the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.” United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (internal quotations and citations omitted). Here, Movant has not met this standard given the untimeliness and equitable tolling analysis in section IV, supra. Thus, the § 2255 Motion may be decided without an evidentiary hearing.
VI. CONCLUSION
For the reasons above, it is recommended that the § 2255 Motion be denied and dismissed with prejudice without an evidentiary hearing. The Ninth Circuit did not authorize a successive motion pursuant to 28 U.S.C. § 2255 based on Borden. Further, the Borden claim raised by Movant in his § 2255 Motion is not cognizable on a successive motion pursuant to 28 U.S.C. § 2255. Regarding Movant's claim pursuant to Davis, these proceedings are untimely under 28 U.S.C. § 2255(f)(3) as having been filed more than a year after the Supreme Court's decision in Davis, and Movant is not entitled to equitable tolling.
If the District Judge disagrees with the recommendations herein, the United States does not object to the Court correcting Movant's sentence by vacating the 18 U.S.C. § 924(c) convictions rather than resentencing Movant. (CV Doc. 52 at 8-9) Movant is also amenable to this procedure. (CV Doc. 48 at 9; CV Doc. 55 at 6)
It is also recommended that a certificate of appealability be denied. Dismissal of the § 2255 Motion is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable; for any claim not subject to a plain procedural bar, Movant has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Accordingly,
IT IS RECOMMENDED that Movant Carlos Garcia-Mesa's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 48) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections.
Failure timely to file 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 timely to file objections to any factual determinations of the Magistrate Judge will 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 Rule 72, Federal Rules of Civil Procedure.