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Alday v. United States

United States District Court, N.D. Texas, Dallas Division

May 16, 2018

CARLOS ALDAY, ID # 53841-177, Movant,



         By 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 limitations.

         I. BACKGROUND

         Carlos 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.)[1] 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.)[2]


         “[Section] 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 states:

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). 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 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 (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).

         Here, 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 his ...

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