United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
Special Order 3-251, this habeas 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 as barred by the statute of
Alday (“Movant”), a federal prisoner, challenges
his 2016 conviction for conspiracy to possess with intent to
distribute a controlled substance and 168-month sentence.
(See docs. 2 & 3.) Judgment was entered on January
23, 2017, and he did not appeal. (See doc. 546.) His
§ 2255 motion states that it was placed in the prison
mailing system on May 2, 2018. (See 3:18-CV-1246-D,
doc. 2 at 12.)
STATUTE OF LIMITATIONS
2255 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
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(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
(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). Movant does not allege any facts
that could trigger a starting date under §§
2255(f)(2)-(4), so his limitations period began to run when
his judgment of conviction became final. See §
2255(f)(1). His conviction became final on February 6, 2017,
the date on which his time to file a direct appeal expired.
See Fed. R. App. P. 4(b)(1)(A)(i) (stating that an
appeal in a criminal case must be filed within fourteen days
of the entry of judgment); see also United States v.
Plascencia, 537 F.3d 385, 388 (5th Cir. 2008) (holding
that, where a federal prisoner does not file a direct appeal,
his conviction becomes final when his time to do so expires).
The one-year limitations period expired in February 2018, so
Movant's § 2255 motion is untimely in the absence of
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 (quoting Rashidi v. Am.
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, the movant
bears the burden to show entitlement to equitable tolling.
Phillips v. Donnelly, 223 F.3d 797, 797 (5th Cir.
2000) (per curiam). Courts must examine each case in order to
determine if there are sufficient exceptional circumstances
that warrant equitable tolling. Fisher v. Johnson,
174 F.3d 710, 713 (5th Cir. 1999).
Movant presents no argument or evidence that extraordinary
circumstances prevented him from filing his motion to vacate
earlier. He argues only that he instructed his counsel to
pursue a direct appeal, but that his counsel explained to him
that “the appeal would not proceed” because any
appeal would be meritless. (See 3:18-CV-1246-D, doc.
2 at 11.) Movant does not allege that his counsel deceived
him into believing that he had filed an appeal when, in fact,
he had not. Cf. United States v. Wynn, 292 F.3d 226,
230 (5th Cir. 2002) (noting that an “allegation that
[the movant] was deceived by his attorney into believing that
a timely § 2255 motion had been filed on his behalf
presents a ‘rare and extraordinary circumstance'
beyond the petitioner's control that could warrant
equitable tolling of the statute of limitations.”). He
offers no reason why he did not diligently pursue his
post-conviction rights until more than a year later. See,
e.g., Manning v. Epps,688 F.3d 177, 186 (5th
Cir. 2012) (holding that a prisoner did not diligently pursue