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United States v. Bravo

United States District Court, District of Kansas

June 11, 2014

PABLO VALDOVINOS BRAVO, Defendant. Criminal No. 12-20019-02-CM


CARLOS MURGUIA, United States District Judge

Presently before the court is a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 47) filed pro se by defendant Pablo Valdovinos Bravo. Defendant did not file a memorandum in support of his motion. The government filed a response, and defendant filed a reply. For the reasons below, the court denies defendant’s motion.

I. Background

On July 3, 2012, defendant pleaded guilty to Count 1 of the Indictment, which charged him with conspiracy to distribute and possess with intent to distribute, more than 50 grams of methamphetamine, in violation of Title 21, U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(viii). Defendant entered into a plea agreement with the government. On October 1, 2012, the court sentenced defendant to 189 months imprisonment to run concurrently with a revocation sentence previously imposed in the Western District of Missouri. Defendant did not file a direct appeal.

In his motion, defendant raises the following grounds for relief: (1) ineffective assistance of counsel for failure to object to anything in the presentence investigation report (“PSR”); (2) ineffective assistance of counsel for failure to properly review the PSR with defendant before sentencing; and (3) ineffective assistance of counsel for failure to appeal the sentence upon defendant’s request.

II. Legal Standards

A defendant is entitled to relief under 28 U.S.C. § 2255 “[i]f the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack . . . .” 28 U.S.C. § 2255. “The standard of review of Section 2255 petitions is quite stringent, ” and “[t]he court presumes that the proceedings . . . were correct.” United States v. Illescas, Nos. 04-20120-JWL, 05-3411-JWL, 2006 WL 1517760, at *1 (D. Kan. May 26, 2006) (quoting United States v. Nelson, 177 F.Supp.2d 1181, 1187 (D. Kan. 2001) (citations omitted)). “To prevail, [the] defendant must show a defect in the proceedings which resulted in a complete miscarriage of justice.” Id. (citation omitted).

In analyzing a habeas petitioner’s claim for ineffective assistance of counsel, the court applies the general standard set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (applying Strickland). Under Strickland, a petitioner must meet a two-prong test. First, he must demonstrate that his attorney’s performance was deficient and “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687– 88. The court gives considerable deference to an attorney’s strategic decisions and strongly presumes that the attorney has provided adequate assistance and made all significant decisions using reasonable professional judgment. Id. at 690. Second, a habeas petitioner must show that he was prejudiced by trial counsel’s deficient performance, which requires that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

Further, in deciding an ineffective assistance of counsel claim, the court is not required to address both prongs of the test if one prong is not met. Id. at 697.

III. Discussion

A. Timeliness of Motion

Defendant was sentenced on October 1, 2012. He did not file a direct appeal. Defendant filed the instant motion on February 10, 2014. (Doc. 47.) Defendant claims he originally attempted to file his § 2255 motion on September 29, 2013. In support, he attaches to his present motion the following documents: (1) an undated letter[1] to the Clerk of the Court asking for confirmation that his § 2255 motion had been filed; (2) a letter dated February 7, 2014, addressed to the Clerk of the Court noting that he is attaching a copy of his § 2255 motion that he allegedly previously sent on September 29, 2013; and (3) an affidavit swearing that he sent his original § 2255 to the Clerk of the Court by placing the motion “in the prison mailbox” on September 29, 2013. (Id. at 7–9.) Defendant’s affidavit states that after he inquired into the status of his § 2255 motion (presumably in the letter referenced in item (1) above), he was informed by the “attached letter” that his motion was never received. (Id. at 8.) Defendant did not attach any letter from the Clerk of the Court.[2] Defendant signed the affidavit, swearing that the instant motion is a “true and correct copy of the original motion which [he] originally sent to the court on 9-29-13 under Title 28 U.S.C. § 1746.” (Id. at 8.)

The government contends that defendant’s motion should be denied as untimely. Judgment was entered against defendant on October 1, 2012. Because he did not file an appeal, defendant’s conviction became final fourteen days after judgment was entered, on October 15, 2012. See Fed. R. App. P. 4(b)(1)(A)(i); United States v. Escarcega, Nos. 07-20100, 12-2215, 2012 WL 2601942, at *2 (D. Kan. July 5, 2012) (“Where a defendant does not file an appeal, his conviction becomes final on the date when the time for filing an appeal expires.”) (citing United States v. Prows, 448 F.3d 1223, 1227–28 (10th Cir. 2006)). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), there is a one-year limitation period for prisoners seeking habeas relief. See 28 U.S.C. § 2255(f)(1)– (4). Defendant does not allege, and the court does not find, that any of the situations in § 2255(f)(2)– (4) are present. Thus, § 2255(f)(1) applies and the one-year period runs from the latest of the date on which defendant’s judgment became final. See Id . Defendant’s deadline to file his motion was October 15, 2013; he did not file his motion until February 10, 2014.

The AEDPA period of limitation “may be tolled for equitable reasons, but only ‘in rare and exceptional circumstances.’” Escarcega, 2012 WL 2601942, at *2 (quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)). These circumstances include (1) that the defendant has been diligently pursuing his rights, and (2) was prevented from doing so by extraordinary circumstances. United States v. Grealish, No. 13-4182, 2014 WL 2180264, at *2 (10th Cir. May 27, 2014) (citing Lawrence v. Florida, 549 U.S. 327, 336 (2007); Gibson, 232 F.3d at 808)).

Defendant has not shown that he has diligently pursued his rights. Although defendant states in his undated letter that he was sent to a special housing unit for eight months and all of his personal documents and records were misplaced and/or lost, he does not allege when this occurred, he does not allege that his legal materials were seized, and he does not detail any requests he made for the return of the materials. Cf. United States v. Gabaldon, 522 F.3d 1121, 1126–27 (10th Cir. 2008) (finding due diligence when the defendant alleged that prison officials denied him access to legal documents despite timely requests for the return of the documents before the deadline).

Further, defendant does not claim he is actually innocent, that uncontrollable circumstances prevented him from meeting the deadline, or that he actively pursued relief but filed a defective pleading before the deadline passed. See Gibson, 232 F.3d at 808. Accordingly, no exceptional circumstances exist to support equitable tolling of the one-year limitation period in this case.

Although neither party raised the issue, the court did consider whether defendant’s motion would be considered timely filed under the prison mailbox rule. This rule provides that a prisoner’s §2255 motion is timely filed if it is placed in the prison mail system on or before the last day for filing. Price v. Philpot, 420 F.3d 1158, 1163–64 (10th Cir. 2005); United States v. Gray, 182 F.3d 762, 765 n.4 (10th Cir. 1999) (applying the prison mailbox rule to motions filed under 28 U.S.C. § 2255). ‘“However, the inmate must attest that such a timely filing was made and has the burden of proof on this issue.’” Price, 420 F.3d at 1165 (quoting United States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004)).

An inmate can establish compliance with the prison mailbox rule in one of two ways. First, if the prison has a legal mail system, then the prisoner must use it. Id. (citations omitted). Second, if the inmate does not have access to a legal mail system, or if the legal mail system does not satisfy the mailbox rule, then the prisoner may “submit a declaration in compliance with 28 U.S.C. § 1746 or notarized statement setting forth the [motion’s] date of deposit with prison officials and attest that first-class postage was pre-paid.” Id. (quoting Ceballos-Martinez, 387 F.3d at 1143 (internal quotation marks omitted)).

But defendant did not specify that he used the prison’s legal mail system; instead, his affidavit stated only that he deposited his § 2255 in the “prison mail box.” (Doc. 47 at 8.) Nor did he allege “that he did not have access to a legal mail system and thus could send his petition through regular mail and still qualify for the mailbox rule.” United States v. Rodriguez, 422 F. App’x 668, 670 (10th Cir. 2011) (citing Price, 420 F.3d at 1166). Even if no legal mail system was available, defendant did not provide a notarized statement or declaration under penalty of perjury in compliance with 28 U.S.C. § 1746, setting forth the date of deposit and attesting that first-class postage was pre-paid. Rather, he stated in his affidavit only “I Hereby do swear” that he sent the § ...

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