Opinion: Motion to Vacate (28 U.S.C. § 2255) — Cruz Valerio v. United States (Dkt. 4, D.N.J.)

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An Opinion, Document 4 in Case 2:15-cv-01905-JLL, filed 07/06/15, in the U.S. District Court, District of New Jersey, in Dionicio R. Cruz Valerio v. United States of America, Civil Action No. 15-1906 (JLL), written by District Judge Linares. The Court considers the petitioner's motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255 and finds that it was filed after the one-year limitation period. It rejects the petitioner's argument for equitable tolling, stating that the petitioner failed to show both exceptional circumstances and reasonable diligence. The Court dismisses the motion as time barred and states that no certificate of appealability shall issue.

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“Opinion: Motion to Vacate (28 U.S.C. § 2255) — Cruz Valerio v. United States (Dkt. 4, D.N.J.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-15-cv-01905-dkt-4-d-n-j-57d5b340a9/, SHA-256 d0ac4afd6d8a66f58529c76e8e19a9f4eac2332d7bc1d420a0fc06e4ff482a8d.

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Case 2:15-cv-01905-JLL Document 4 Filed 07/06/15 Page 1 of 7 PageID: 78

*NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DIONICIO R. CRUZ VALERIO,
Civil Action No. 15-1906 (JLL)
Petitioner,

v. : OPINION

UNITED STATES OF AMERICA,

Respondent.

LINARES, District Judge:

Presently before the Court is the motion of Dionicio R. Cruz Valerio (“Petitioner”) to

vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C.
§ 2255. (ECF No. 1). On
May 22, 2015, this Court issued an order directing Petitioner to show cause why his petition should

not be dismissed as untimely. (ECF No. 2). On June 8, 2015, Petitioner filed a response to
that
order. (ECF No. 3). For the following reasons, the Court will dismiss Petitioner’s motion
as
untimely.

I. BACKGROUND

As this opinion deals solely with the issue of the timeliness of Petitioner’s motion, only a

brief recitation of the dates involved is necessary to provide context to this Court’s discuss
ion of
Petitioner’s motion. On December 7, 2010, Petitioner pled guilty pursuant to a plea agreement
to
one count of conspiracy to import five kilograms or more of cocaine into the United
States in
violation of2l U.S.C. § 963. (ECF No. 1 at 1). This Court sentenced Petitioner on
July 2, 2012.
(Id). Petitioner thereafter timely appealed to the Third Circuit, which affirmed on
Octobe r 18,
Case 2:15-cv-01905-JLL Document 4 Filed 07/06/15 Page 2 of 7 PageID: 79

2013. See United States v. Valerio, 541 F. App’x 174 (3d Cir. 2013). Petitioner did not file a

petition for certiorari with the Supreme Court.

On or about March 4, 2015, Petitioner filed a motion pursuant to 28 U.S.C.
§ 2255. (ECF
No. 1 at 13). On May 22, 2015, this Court entered an Order directing Petitioner to show cause

why his motion was not untimely. (ECF No. 2). Petitioner responded to that order on or about

June 8, 2015, and now argues that his motion should benefit from equitable tolling and should

therefore be treated as timely filed. (ECF No. 3).

II. DISCUSSION

A. Legal Standard

A prisoner in federal custody may file a motion pursuant to 28 U.S.C.
§ 2255 challenging
the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.

28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a Constitutional

violation, in order to merit relief the moving party must show that an error of law or fact constitutes

“a fundamental defect which inherently results in a complete miscarriage of justice, (or) an

omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,

599 F.2d 1265, 1268 (3d Cir.) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.

2
Case 2:15-cv-01905-JLL Document 4 Filed 07/06/15 Page 3 of 7 PageID: 80

denied 444 U.S. 865 (1979); see also Morel/i v. United States, 285 F. Supp. 2d 454, 45 8-59 (D.N.J.

2003).

B. Analysis

1. An evidentiary hearing is not required

28 U.S.C. § 2255(b) requires an evidentiary hearing for all motions under the statute

“unless the motion and files and records of the case conclusively show that the prisoner is entitled

to no relief.” 28 U.S.C. §2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005);

United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). Where the record and the trial judge’s

knowledge of the petitioner’s case combine to conclusively negate the factual predicates asserted

by a petitioner or indicate that the petitioner is not entitled to relief as a matter of law, a hearing
is
not required by the statute. Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d

Cir. 1985); see also United States v. Tuyen QuangPham, 587 F. App’x 6, 8 (3d Cir. 2014); Booth,

432 F.3d at 546. For the reasons set forth below, Petitioner’s motion is untimely and there is
no
basis for equitable tolling. As such, Petitioner is not entitled to relief as a matter of law as his

motion is time barred, and no evidentiary hearing is therefore necessary for the resolution
of
Petitioner’s motion.

2. Petitioner’s § 2255 is untimely and there is no basis for equitable tolling

In his response to this Court’s order, Petitioner acknowledges that his motion was not
filed
within the one year period specified by 28 U.S.C. § 2255(f), but argues that he should receive
the
benefit of equitable tolling. Under the statute, a motion under 2255 is subject to
§ a one-year

3
Case 2:15-cv-01905-JLL Document 4 Filed 07/06/15 Page 4 of 7 PageID: 81

statute of limitations and must therefore be filed within one year of the date that his convic
tion
becomes final.’ 28 U.S.C. § 2255(0(1). Where a petitioner has filed a direct appeal but does
not
file a petition for certiorari, his conviction becomes final for the purposes of the statute
of
limitations on the date on which the time for him to file a timely petition for certiorari expires.

See Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). A petition for certiorari is only

timely if filed within ninety days of the entry of the order of the Court of Appea
2 ls. Id.
Petitioner’s conviction therefore became final on January 16, 2014, 90 days after the Third
Circuit
entered its order and opinion affirming this Court’s sentence on October 18, 2013. The one
year
statute of limitations had therefore run as to Petitioner’s conviction on January 16, 2015,

approximately a month and a half before Petitioner filed his § 2255 motion.

Petitioner argues that the statute of limitations should be equitably tolled because his

attorney allegedly never informed him of the Third Circuit’s October 2013 decision, of which
he
learned only after asking for an update from that court in October 2014. Equitable tolling
“is a
remedy which should be invoked ‘only sparingly.” United States v. Bass, 268 F. App’x 196,
199
(3d Cir. 2008) (quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). A petitio
ner
seeking equitable tolling must “show (1) that he faced ‘extraordinary circumstances that
stood in
the way of timely filing,’ and (2) that he exercised reasonable diligence.” United States v.
Johnson, 590 F. App’x 176, 179 (3d Cir. 2014) (quoting Pabon v. Mahanoy, 654 F.3d
385, 399

Petitioner does not argue that any of the alternative starting points for the running the
of statute
of limitations applies, and this Court agrees that those alternatives do not apply here.
See 28
U.S.C. § 2255(f)(2)-(4).
2
To the extent that Petitioner suggests that the ninety days instead runs from the filing
of the
mandate, this Court rejects such an argument as Supreme Court Rule 13 clearly establishes
that
the ninety days runs from the entry ofjudgment and “not from the issuance date
of the mandate.”
4
Case 2:15-cv-01905-JLL Document 4 Filed 07/06/15 Page 5 of 7 PageID: 82

(3d Cir. 2011)). Diligence in this context is determined objectively, but does take into

consideration a prisoner’s particular circumstances. Id. In non-capital cases, an attorney’s
“malfeasance or non-feasance is typically not an ‘extraordinary circumstance which
justifies
equitable tolling of a § 2255 motion.” Bass, 268 F. App’x at 199; see also Schlue
ter v. Varner,
384 F.3d 69, 76 (3d Cir. 2004). The exception to this general rule is quite narrow, and
arises only
in those cases where an attorney’s affirmative misrepresentation to his client is
coupled with
extreme diligence on the part of the petitioner. See Schlueter, 384 F.3d at 76; see also
Seitzinger
v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239-42 (3d Cir. 1999) (permitting equitab
le tolling
of the Title VII statute of limitations where an attorney affirmatively misled his client
to believe
he had timely filed a complaint and the client thereafter filed her complaint within one
day of the
statute of limitations following extensive efforts to ensure timely filing).

Petitioner argues that the only reason he did not timely file his
§ 2255 motion is that he did
not learn of the denial of his direct appeal until October 2014, more than a year after
the Third
Circuit issued its opinion affirming his conviction and sentence. Petitioner asserts that his
attorney did not inform him of the Third Circuit’s decision, nor of the January deadlin
e for the
filing of a § 2255 motion due to his attorney’s “extreme negligence.” Petitioner
asserts no more
than attorney non-feasance as the exceptional circumstances supporting equitable tolling
, and does
not assert that his attorney affirmatively mislead him or otherwise committed
malfeasance, let
alone the severe malfeasance required to fit the exception outlined in Schlueter.
384 F.3d at 76.
The failure of counsel to inform Petitioner of the Third Circuit’s decision and the
deadline for
filing the current motion is simply insufficient to qualify as an except
ional circumstance
warranting equitable tolling. Id.; Bass, 268 F. App’x at 199.

5
Case 2:15-cv-01905-JLL Document 4 Filed 07/06/15 Page 6 of 7 PageID: 83

Even if Petitioner could show exceptional circumstances, he cannot establish the second

prong of the equitable tolling test: that he acted with reasonable diligence. Althou
gh Petitioner
quotes from the Second Circuit’s decision in Baldayaque v. United States, 338 F.3d
145, 153 (2d
Cir. 2003), to suggest that he, like Baldayaque, made efforts at the earliest possib
le time to obtain
a lawyer, had no funds to consult with additional lawyers, that his lawyer failed to comm
unicate
directly with him at any time, lacks education and doesn’t speak or write English well,
and lacked
direct access to forms of legal assistance; Petitioner provides no evidence or even allegat
ions that
would suggest that he took any of the steps recounted by the Second Circuit in Balday
3 aque.
What is clear from the record and from Petitioner’s response to the order to show
cause,
however, is that Petitioner was informed of the Third Circuit’s decision at the latest when
he
received that court’s October 27, 2014, letter informing him of the result and the
date of the Third
Circuit’s decision entered on October 18, 2013. (Letter attached to ECF No. 3 PagelD
at 62-63).
According to documents submitted by Petitioner, he received that letter on Octobe
r 30, 2014.
(Id.). Thus, Petitioner was made aware of the Third Circuit’s decision in late Octobe
r, 2014, two
and a half months before the running of the statute of limitations for a
§ 2255 motion. Petitioner,
however, did not file his motion until March 2015, more than four months later.
There is nothing
in the record to suggest any steps taken by Petitioner between October 30, 2014,
and January 16,
2015, to suggest that Petitioner was exercising reasonable diligence in pursuing
his rights during
that time, let alone the sort of extreme diligence necessary to fit within the except
ion outlined in

Petitioner’s insertion of his own name into those quotes (ECF No. 3 at 8) notwit
hstanding.
This Court also notes that the Second Circuit in Baldayaque expressed no opinio
n as to whether
the circumstances which Petitioner quotes would be sufficient to form the basis
of a finding for
reasonable diligence, instead remanding that question. See 338 F.3d at 153.

6
Case 2:15-cv-01905-JLL Document 4 Filed 07/06/15 Page 7 of 7 PageID: 84

Schlueter to the general rule that even attorney malfeasance is insufficient to warrant equitable

tolling. 384 F.3d at 76. As Petitioner has failed to show both exceptional circumstances and

reasonable diligence, equitable tolling is not warranted in this case. This Court will therefore

dismiss Petitioner’s § 2255 motion as time barred.

III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a

proceeding under § 2255 unless she has “made a substantial showing of the denial of a

constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason

could disagree with the district court’s resolution of his constitutional claims or that jurists could

conclude that the issues presented here are adequate to deserve encouragement to proceed further.”

Miller-El i’. Cockreil, 537 U.S. 322, 327 (2003). As Petitioner’s motion is clearly time barred and

jurists of reason could not disagree with this Court’s ruling denying Petitioner’s request for

equitable tolling, no certificate of appealability shall issue.

IV. CONCLUSION

For the reasons stated above, this Court will dismiss Petitioner’s
§ 2255 motion as
untimely, and no certificate of appealability shall issue. An appropriate order follows.

Linares,
States District Judge

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