Barreto-Barreto v. U.S.

• Decision Date: 24 December 2008
• Docket Number: No. 07-2151.,No. 07-2156.,No. 07-2152.,No. 07-2153.,No. 07-2155.,No. 07-2150.,No. 07-2149.,No. 07-2157.,No. 07-2154.,07-2149.,07-2150.,07-2151.,07-2152.,07-2153.,07-2154.,07-2155.,07-2156.,07-2157.
• Citation: 551 F.3d 95
• Parties: Juan I. BARRETO-BARRETO, Juan F. Barreto-Ginorio, Glorimar Barreto-Ginorio, Juan M. Barreto-Ginorio, Ramon L. Barreto-Ginorio, Nelson Ramos-Irizarry, Carmelo Rivera-Rivera, Teodoro F. Alfonso-Toledo, Ivan Rosa-Toledo, Petitioners, Appellants, v. UNITED STATES, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

551 F.3d 95

Juan I. BARRETO-BARRETO, Juan F. Barreto-Ginorio, Glorimar Barreto-Ginorio, Juan M. Barreto-Ginorio, Ramon L. Barreto-Ginorio, Nelson Ramos-Irizarry, Carmelo Rivera-Rivera, Teodoro F. Alfonso-Toledo, Ivan Rosa-Toledo, Petitioners, Appellants, v. UNITED STATES, Respondent, Appellee.

No. 07-2149.

No. 07-2150.

No. 07-2151.

No. 07-2152.

No. 07-2153.

No. 07-2154.

No. 07-2155.

No. 07-2156.

No. 07-2157.

United States Court of Appeals, First Circuit.

Heard October 27, 2008.

Decided December 24, 2008.

Lorenzo J. Palomares-Starbuck was on brief for petitioners.

Julia M. Meconiates, Assistant United States Attorney, with whom Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief for respondent.

Before TORRUELLA and HOWARD, Circuit Judges, and DiCLERICO,^* Senior District Judge.

DiCLERICO, District Judge.

The petitioners, Juan I. Barreto-Barreto, Juan F. Barreto-Ginorio, Glorimar Barreto-Ginorio, Juan M. Barreto-Ginorio, Ramon L. Barreto-Ginorio, Nelson Ramos-Irizarry, Carmelo Rivera-Rivera, Teodoro F. Alfonso-Toledo, and Ivan Rosa-Toledo, appeal the district court's denial of their 28 U.S.C. § 2255 petitions. They argue that they were charged with, pled guilty to, and sentenced for a nonexistent offense and that their convictions are therefore unconstitutional or otherwise invalid. The government argues that the petitioners' claims are procedurally barred, their § 2255 petitions were untimely, and their convictions were valid. We affirm the district court's denial of the petitions, but on an alternate ground. We hold that the petitions were untimely under the provisions of § 2255.

I.

The facts are not in dispute, and we adopt the district court's statement of the facts, supplementing, when necessary, with other facts contained in the record. Between September 1998 and September 1999, the petitioners submitted requests for federal aid for losses and damages to their homes and farms which they claimed to have suffered as a result of Hurricane Georges. The losses and damages claimed were in excess of those actually suffered.

In 2003 and 2004, the petitioners were each charged by information with violating 18 U.S.C. § 1014 which, at the time the acts were committed, provided: "Whoever knowingly makes any false statement or report, ... for the purpose of influencing in any way the action of ... the Secretary of Agriculture acting through the Farmers Home Administration ... shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both." The Farmers Home Administration ("FHA"), however, was abolished in 1994 and at that time was succeeded by the Farm Service Agency ("FSA"). On October 22, 1999, § 1014 was amended to include the phrase "or successor agency" after "Farmers Home Administration." See Pub.L. No. 106-78, Title VII § 767, 113 Stat. 1135 (codified as amended at 18 U.S.C. § 1014(2000)).

The petitioners pled guilty to the informations, which charged them with "knowingly and willfully mak[ing] false statements or reports, or overvalu[ing] land, property or security for the purpose of influencing the actions of the Secretary of Agriculture, acting through the Farm Service Agency, an Agency of the United States government and a successor of the Farmers Home Administration...." The petitioners were all sentenced between January 2005 and April 2005. Their sentences ranged from time served to eight hours imprisonment, in addition to terms of supervised release ranging from two years and four months to five years.

Between August 29, 2006, and October 2, 2006, the petitioners each filed a § 2255 petition claiming that until the phrase "or successor agency" was added to § 1014, false statements or reports made to the FSA did not violate § 1014, and therefore their informations failed to charge a crime. They contended that the sentencing court did not have subject matter jurisdiction over them, and that the application of the October 22, 1999 amendment to them violated the Ex Post Facto Clause of the United States Constitution. U.S. Const. art. I, § 9, cl. 3. Eight of the petitions were consolidated for the purpose of deciding their common legal issues. On April 25, 2007, the court denied the § 2255 petitions, finding that § 1014, before it was amended, encompassed the petitioners' conduct, and that charging them under § 1014 did not violate the Ex Post Facto Clause.¹

II.

The petitioners argue that the district court erred in denying their petitions based on its conclusion that their conduct violated § 1014, as it was written when they were charged. The government attempts to avoid the substantive issue raised by the petitioners by arguing that their claims are procedurally defaulted and their § 2255 petitions are time-barred. Alternatively, in the event we were to reach the substantive issue, the government argues that the petitioners' conduct violated § 1014. The petitioners counter contending that their petitions are not time barred, and alternatively, that equitable tolling applies. They further argue that, in any event, the merits of their claims must be reviewed because they are actually innocent of the charges, and because they are entitled to coram nobis relief.

A. Procedural Default

The government contends that because the petitioners failed to raise their claims in a direct appeal from their convictions, their claims are procedurally barred from review under § 2255. The petitioners respond that they are challenging the jurisdiction of the sentencing court because the informations failed to charge an offense, and that the jurisdictional challenge may be raised for the first time in a § 2255 petition.

The government waived the issue of procedural default by not raising it in response to the § 2255 petitions below. We decline to overlook the government's waiver. Cf. Oakes v. United States, 400 F.3d 92, 96 (1st Cir.2005) ("[P]rocedural default is an affirmative defense [which] the government may lose ... by neglecting to raise it in a response to a habeas petition.").

B. Timeliness

Section 2255(a) provides that a prisoner may move to vacate, set aside, or correct his sentence "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 sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), § 2255 petitions must be filed within one year of 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).

Under the circumstances of this case, the limitations period for the petitioners to file their § 2255 petitions began to run on "the date on which the judgment of conviction bec[ame] final." 28 U.S.C. § 2255(f)(1). This period expired for all of the petitioners between January and May of 2006, which is one year from the day on which the petitioners' judgments of conviction became final.² The earliest § 2255 petition was filed on August 29, 2006, after the one-year period had expired for all the petitioners. Absent an applicable exception to the one-year limitations period, the petitions were untimely.

The petitioners argue that the petitions were timely because they were filed within one year of the date on which they became aware of the "failure to charge an offense" claim. Alternatively, they contend that § 2255's filing deadline does not apply to claims that the sentencing court was without subject matter jurisdiction, and that, in any case, they are entitled to equitable tolling.

1. Recognition of the Claim

The petitioners state that their § 2255 petitions were filed within one year of October 17, 2005, the date on which they first recognized their claim that the informations against them failed to charge an offense.³ However, the petitioners do not develop their argument beyond this assertion. They offer no legal support, nor do they cite an applicable event under § 2255(f) which would commence the limitations period later than "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1).⁴ The petitioners have waived their recognition argument and we decline to address it on the merits. See Rhode Island Laborers' Dist. Council, Local Union 808 v. Rhode Island, 145 F.3d 42, 45 (1st Cir.1998) (deeming waived arguments consisting merely of "terse references and hints"); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").

2. Jurisdiction

The petitioners argue that because the informations failed to charge an offense, the district court was without subject matter jurisdiction to sentence them, and that challenges to jurisdiction are not subject to § 2255's one-year limitations period. The petitioners rely heavily upon Federal Rule of Criminal Procedure 12(b)(3)(B) to support their argument. The government argues that the petitioners disguise a statutory interpretation argument as a jurisdictional challenge in order to avoid § 2255's filing deadline.

Section 2255 states that claims which allege "the court was without jurisdiction to impose such sentence" may be raised in a §...