Opinion
Nos. 3:02-CR-115-P(03), (3:04-CV-1541-P).
January 13, 2005
MEMORANDUM OPINION AND ORDER
Before the court for consideration is Movant's July 15, 2004 motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255.
Statement of the Case: Movant was charged by indictment with a single count of drug trafficking in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), to which she pled guilty. On November 15, 2002, the District Court entered judgment sentencing Movant to sixty months imprisonment, a five-year term of supervised release, and a mandatory special assessment of $100.00. Movant did not appeal.
On July 15, 2004, Movant filed this § 2255 motion challenging the judgment of conviction. She contends (1) she received ineffective assistance of counsel during the guilty plea proceeding as well as at sentencing, (2) her guilty plea was unknowing and involuntary and given in violation of Fed.R.Crim.P. 11, and (3) her due process rights were violated as a result of false and inaccurate information contained in the Presentence Report in violation of Fed.R.Crim.P. 32.
Analysis: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), establishes a one-year statute of limitations for federal inmates seeking relief under § 2255. See 28 U.S.C. §§ 2255. The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
On July 26, 2004, the Court advised Movant of the one-year statute of limitations and granted her thirty days to show cause why the § 2255 motion should not be dismissed as barred by the limitation period. Movant filed her response to the show cause order on August 9, 2004.
Section 2255 provides in part as follows:
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.
Movant's conviction became final on November 29, 2002, the last day on which she could have appealed the judgment to the Fifth Circuit Court of Appeals. See Fed.R.App. 4(b)(1)(A) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government's notice of appeal."). The one-year period began to run on November 30, 2002, the day after the conviction became final, see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998), and expired on November 29, 2003. Movant did not file this § 2255 motion until July 5, 2004, seven months after the expiration of the one-year period. Therefore, Movant's § 2255 motion is clearly untimely.
For purposes of this recommendation, the § 2255 is deemed filed on July 5, 2004, the date Petitioner signed it and presumably placed it in the prison mail. See United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (citing Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing)).
In response to this court's show cause order, Movant asserts that since the inception of this criminal proceeding she has been at a disadvantage because she does not know the English language and because she received the ineffective assistance of counsel.
Insofar as Petitioner requests equitable tolling of the limitation period, her requests should be denied. The one-year statute of limitations can be equitably tolled only in cases presenting "rare and exceptional circumstances." United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002), cert. denied, 539 U.S. 952 (2003). "`The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable.'" United States v. Patterson, 211 F.3d 927, 930-31 (5th Cir. 2000) (quoted case omitted). "Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'"Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quotingRashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)); see also Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001). Neither "a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999). Further, "equity is not intended for those who sleep on their rights." Fisher, 174 F.3d at 715. Rather, "[e]quitable tolling is appropriate when, despite all due diligence, a plaintiff is unable to discover essential information bearing on the existence of his claim." Id. at 715, n. 14. Finally, a habeas petitioner has the burden of proving that he or she is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Movant contends she cannot read, write or understand the English language. Hence, even through due diligence, she could not have presented her claims earlier.
Movant's lack of familiarity with the English language does not rise to the level of a rare or exceptional circumstance, which would warrant equitable tolling of the AEDPA limitation period. Inability to speak or read the English language is a disability common to many incarcerated persons and as such it does not warrant equitable tolling. See Zinsou v. Dretke, 2004 WL 2381243, *1, 4:04cv566-A (N.D.Tex. Oct. 22, 2004) (adopting recommendation of the magistrate judge) (citing Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002), cert. denied, 538 U.S. 984 (2003) (the inability to read and speak English is not in itself a sufficient basis for equitable tolling)); United States v. Cordova, 202 F.3d 283, 1999 WL 1136759 (10th Cir., Dec. 13, 1999) (unpublished opinion) (inability to read and speak English language does not warrant equitable tolling); United States v. Teshima-Jiminez, No. CRIM. 97-087, 1999 WL 600326 at *2 (E.D.La. Aug. 5, 1999) ("lack of legal research material and assistance" and "little English spoken" in petitioner's prison not "rare and exceptional circumstances" to justify equitable tolling).
Movant also contends that her pro se status should be a basis for equitable tolling. The Fifth Circuit, however, has held that "neither a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999).
Next Movant asserts that her counsel's ineffectiveness during the guilty plea and sentencing proceedings provides sufficient cause to toll the limitation period. This claim is equally unavailing. A counsel's actions or inactions at a timepreceding the one-year limitation period cannot provide a basis to equitably toll the limitation period. Moreover, the timely filing of a § 2255 motion is not dependent on counsel perfecting a direct appeal. See United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002), cert. denied, 125 S.Ct. 511 (2004) (only an attorney's intentional deceit with respect to filing of § 2255 motion could warrant equitable tolling if the petitioner reasonably relied on his attorney's deceptive misrepresentation).
The plea agreement in this case reflects Movant waived her right to appeal the sentence and to file a § 2255 motion except under very limited circumstances. (See Plea Agreement ¶ 10).
Fore the foregoing reasons Movant's request to toll the statute of limitations on equitable grounds is denied.
CONCLUSION
IT IS THEREFORE ordered that Movant Maria Guadalupe Polbo-Torres' motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is dismissed as barred by the one-year statute of limitations.
The Clerk will transmit a copy of this order to Movant.
JUDGMENT
IT IS ORDERED, ADJUDGED AND DECREED that Maria Guadalupe Polbo-Torres' motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is DISMISSED as barred by the one-year statute of limitations.