Opinion
No. 3:02-CR-273-D.
March 11, 2005
REPORT AND RECOMMENDATION
By Order of Reference filed February 10, 2004, the District Court referred defendant's "Motion for Enforcement of a Rule 35 Motion, by the United States Attorney, for the Northern District of Texas, and Requested Relief in Delaying Filing of 28 U.S.C. Petition 2255" to the undersigned Magistrate Judge for hearing, if necessary, and for recommendation.
I. BACKGROUND
In November 2002, defendant entered into a plea agreement with the government wherein she pled guilty to possession with intent to distribute in excess of five kilograms of cocaine. In that agreement, the government agreed to file a motion for downward departure on defendant's behalf if, "in its sole discretion", it determined she was eligible for such motion after evaluation of information provided by her. On February 23, 2003, the Court accepted defendant's guilty plea and sentenced her to eighty-seven months imprisonment.
In February 2004, defendant filed the motion now before the Court. She therein asks the Court to order the government to show cause why the United States Attorney's Office has not filed a motion pursuant to Fed.R.Crim.P. 35 on her behalf as promised in her plea agreement. In addition, she requests a delayed right to file a motion to vacate pursuant to 28 U.S.C. § 2255 pending the outcome of the motion now before the Court. She prays that the Court either order the government to enforce the terms of her plea agreement, which calls for the filing of a Rule 35 motion for downward departure, or order the government to show cause why it is breaching the terms of the plea agreement. She further prays that the Court grant her the right to file a motion to vacate pursuant to 28 U.S.C. § 2255 after the Court rules on the instant motion.
In its Order of February 13, 2004, the Court expressly notified defendant that the filing of her request did not toll the one-year statute of limitations for filing a § 2255 motion and ordered a response from the government to defendant's Rule 35 allegations. The government filed its response to defendant's motion on February 19, 2004. ( See Gov.'s Resp. at 1.)
II. MOTION FOR ENFORCEMENT
By her motion for enforcement of Rule 35 motion, defendant seeks to have the Court to enforce the terms of her plea agreement, or alternatively, to order the government to show cause why it is breaching the terms of the plea agreement. The government argues that defendant does not qualify for a reduction of her sentence pursuant to Fed.R.Crim.P. 35, that it made no promises that it would file a motion under that rule, and that it is under no obligation to file such a motion. The government states that defendant's cooperation did not rise to the level of substantial assistance as required for a Rule 35 motion.
In view of the requested relief, the instant motion provides no occasion to consider the potential ramifications of recent Supreme Court decisions on Fed.R.Crim.P. 35(b).
Unless the government has obligated itself to file a motion for downward departure under Rule 35, the courts do not inquire into the decision not to file such a motion except when it is shown that "the government's refusal or failure so to move `was based on an unconstitutional motive.'" See United States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994) (quoting Wade v. United States, 504 U.S. 181, 185-87 (1992)). When the government places the filing of such a motion "in its sole discretion", it does not obligate itself to filing such a motion. Id.
Paragraph 9 of the plea agreement provides the relevant provision related to defendant's request for enforcement. It states:
Rodriguez agrees to provide truthful, accurate and complete information and/or testimony concerning [her] participation in and knowledge of criminal activities, whether or not it is related to this indictment. The government may, in its sole discretion, file a motion for downward departure pursuant to Section 5K1.1 of the sentencing guidelines to allow the Court to sentence Rodriguez below an applicable guideline range. That decision will be made by the government after it evaluates the information and/or testimony of Rodriguez. The government may file a motion at a time determined by the government, but only on the basis of the government's evaluation of the truthfulness, accuracy and completeness of Rodriguez's information and/or testimony and determines that she has complied with the requirements of Section 5K1.1. Rodriguez further understands that the government is under no obligation whatsoever to file a motion with the Court for the departure from the sentencing guidelines unless, based on the government's evaluation, she has complied with the requirements of Section 5K1.1.
(emphasis added). The terms of the plea agreement place the discretion for filing a Rule 35 motion within the sole control of the government based upon its evaluation of the information provided by defendant. Thus, the terms of the plea agreement create no obligation to file such a motion. The government has stated that its evaluation of such information does not qualify defendant for a Rule 35 motion. Defendant has not alleged, much less shown, any unconstitutional motive for the failure to file a motion pursuant to Fed.R.Crim.P. 35. The Court thus has no basis to find that the government breached the plea agreement or to compel the government to file a Rule 35 motion. The District Court should deny the request to compel the government to enforce the plea agreement or to show cause why it is breaching the terms of the plea agreement.
III. MOTION FOR EXTENSION OF TIME TO FILE MOTION TO VACATE
Defendant also wants the Court to grant her the right to file a motion to vacate pursuant to 28 U.S.C. § 2255 after the Court rules on the instant motion. In its Order of February 13, 2004, however, the Court expressly informed defendant that it has no authority to extend the time for filing a motion to vacate under 28 U.S.C. § 2255. Specifically, the Order of February 13, 2004, stated:
Because the Court has no authority to extend the time for filing a motion to vacate under 28 U.S.C. § 2255, there is no need for a response to defendant's request to delay filing such a motion. The statute of limitations of § 2255 does not act as a deadline that is extendable by court order. Instead, it is a statutory bar to consideration of the claims asserted in a motion to vacate. It is not a jurisdictional bar to filing the action, but rather an affirmative defense that is subject to equitable tolling. United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). Defendant is hereby placed on notice that the filing of the request to delay filing her § 2255 motion does not, in any manner, toll the one-year limitations period.
(Emphasis added.) As stated in the Order, § 2255 grants defendant the opportunity to file a motion to vacate, but such filing is subject to a one-year statute of limitations. This Court cannot pre-approve any delay in filing a motion under § 2255 before defendant files such motion. See Ward v. Santa Fe Indep. Sch. Dist., 393 F.3d 599, 604 (5th Cir. 2004) (court does not grant advisory opinions); John Doe #1 v. Veneman, 380 F.3d 807, 814 (5th Cir. 2004) (same). For these reasons, defendant's request for extension of time to file a § 2255 motion should be denied.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the Court DENY defendant's "Motion for Enforcement of a Rule 35 Motion, by the United States Attorney, for the Northern District of Texas, and Requested Relief in Delaying Filing of 28 U.S.C. Petition 2255."