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Sica v. United States

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

May 16, 2018

JULIE SICA, ID # 60372-018, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

         Referred to U.S. Magistrate Judge

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

         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

         Julie Sica (“Movant”) pleaded guilty to conspiracy to distribute a controlled substance and using a communication facility to facilitate a drug felony. (See 3:16-CR-078-N (3), doc. 128.)[1] T h e Court sentenced her to 108 months' imprisonment, with a 2-year term of supervised release, to be served concurrently with her sentence in No. 3:13-CR-278-D (2). (See doc. 128.) Judgment was entered on March 3, 2017, and she did not appeal. (See doc. 128.) Her § 2255 motion was received on April 10, 2018. (See 3:18-CV-890-N, doc. 2.)

         II. STATUTE OF LIMITATIONS

         “[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 her limitations period began to run when her judgment of conviction became final. See § 2255(f)(1). Her conviction became final on March 17, 2017, the date on which her 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, her conviction becomes final when her time to do so expires). The one-year limitations period expired in March 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). ...


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