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Vallejo v. United States

United States District Court, Fifth Circuit

October 31, 2013




Pursuant to Special Order 3-251, this case has been automatically referred for findings, conclusions, and recommendation. Based on the relevant findings and applicable law, the motion to vacate, set aside, or correct sentence should be DENIED with prejudice as barred by the statute of limitations.


Jose Vallejo, Jr. ("Movant"), an inmate in the federal prison system, filed his 28 U.S.C. § 2241 Actual Innocence of Sentence ("Mot.") on August 6, 2013, in the Fort Worth Division. After being provided notice as required by Castro v. United States, 540 U.S. 375, 383 (2003) (doc. 8), his filing was construed as a § 2255 motion to vacate and transferred to the Dallas Division by order dated October 7, 2013. (doc. 10). The respondent is the United States of America ("Government").

On May 22, 2002, Movant was charged by superceding indictment with conspiracy to possess with intent to distribute more than 500 grams of methamphetamine and more than 5 kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). ( See Superceding Indictment). Pursuant to a plea agreement, he pled guilty to count one of the indictment, and he was sentenced on November 15, 2002, to 188 months' imprisonment, followed by a five-year term of supervised release. ( See Amended Judgment). Movant did not appeal his conviction or sentence.


Section 2255 of Title 28 "establishes a 1-year period of limitation' within which a federal prisoner may file a motion to vacate, set aside, or correct his sentence under that section." Dodd v. United States, 545 U.S. 353, 356 (2005). It states that:

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.

28 U.S.C. § 2255(f). With regard to § 2255(f)(1), Movant's conviction became final back in November of 2002, when the ten days for filing an appeal from the judgment elapsed. See Fed. R. App. P. 4(b)(1)(A)(I); Fed. R. App. P. 26(a).[1] He now asserts that the Government failed to meet its burden of proof at his sentencing hearing with regard to the amount of drugs for which he was held accountable, and that he was sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005) (Mot. at 7-8). To the extent that Movant is arguing that his claims are based on these Supreme Court cases, the most recent one was handed down by the Supreme Court on January 12, eight years later, so it is untimely in the absence of equitable tolling.

"[T]he statute of limitations in § 2255 may be equitably tolled in rare and exceptional circumstances.'" United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). "The doctrine of equitable tolling preserves a [party's] claims when strict application of the statute of limitations would be inequitable." Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998) (quoting Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995)). It "applies principally where [one party] is actively misled by the [other party] about the cause of action or is prevented in some extraordinary way from asserting his rights." See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). In the context of a habeas petition filed by a state prisoner, the Supreme Court has stated that a habeas petitioner is entitled to equitable tolling only if he shows that: 1) he has been pursuing his rights diligently, and 2) some extraordinary circumstance prevented a timely filing. Holland v. Florida, 130 S.Ct. 2549, 2562 (2010), citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). "[E]quity is not intended for those who sleep on their rights." Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989). Furthermore, Movant ...

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