United States District Court, N.D. Texas, Dallas Division
to U.S. Magistrate Judge
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
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.) 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.)
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 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
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). ...