Rios-Delgado v. U.S.

• Decision Date: 11 October 2000
• Docket Number: No. EP-97-CR-020-DB.,No. EP-98-CA-101-DB.,EP-98-CA-101-DB.,EP-97-CR-020-DB.
• Citation: 117 F.Supp.2d 581
• Parties: Jose RIOS-DELGADO, TN: Salomon Roque-Escobar, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Western District of Texas

Page 581

117 F.Supp.2d 581

Jose RIOS-DELGADO, TN: Salomon Roque-Escobar, Movant, v. UNITED STATES of America, Respondent.

No. EP-98-CA-101-DB.

No. EP-97-CR-020-DB.

United States District Court, W.D. Texas, El Paso Division.

October 11, 2000.

COPYRIGHT MATERIAL OMITTED

Mary Stillinger, El Paso, TX, for movant.

Janet M. Bonner, Assistant United States Attorney, El Paso, TX, for respondent.

ORDER GRANTING MOVANT'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO TITLE 28 U.S.C. § 2255

BRIONES, District Judge.

BEFORE THIS COURT is Movant Jose Rios-Delgado's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion to Vacate"), the Government's Response to Motion to Vacate Sentence Under 28 U.S.C. § 2255 and Movant's Reply to the Government's Response.

Facts & Procedural History

On January 10, 1989, Movant pled guilty to the felony conviction of Commercial Burglary in the Superior Court of California and was sentenced to two (2) years imprisonment. After serving his sentence, Movant was deported.

Eight years later, on January 16, 1997, Movant, represented by Claudia Beavers of the Federal Public Defender's Office, pled guilty to a one count Information charging him with Illegal Re-entry of a Removed Alien, a violation of 8 U.S.C § 1326. On February 3, 1997, the Government separately filed an Amended Notice of Penalty Enhancement, asserting that Movant had previously been convicted of Commercial Burglary, a conviction that it alleges subjects him to an enhanced sentence.

On March 10, 1997, Movant was sentenced after the Government agreed not to oppose the award of a three-level reduction for acceptance of responsibility and to recommend a two-level downward departure in exchange for his agreement to waive deportation proceedings and to enter a plea of guilty. A Pre-Sentence Investigation Report ("PSR") was prepared and advised the Court that Movant's sentence should be adjusted upwards by 16 levels because of United States Sentencing Guidelines ("Guidelines") § 2L1.2(b)(2), which requires such an the enhancement "[i]f the defendant previously was deported after his conviction for an aggravated felony" as provided in 8 U.S.C. § 1101(a)(43). The PSI further advised that, in light of a criminal history category VI, less the adjustment and the downward departure, the guideline range of imprisonment was 63-78 months. Movant filed no objection to the PSR nor voiced concerns over the proposed 16-level enhancement. This Court accepted the PSR and sentenced Movant to a sixty-six-month term of incarceration, finding that Movant was an aggravated felon under the statutory definition in 8 U.S.C. § 1101(a)(43)—referenced as Note 7 in the Comment to § 2L1.2(b)(2) of the Guidelines.

Movant did not contest his conviction or sentence by way of a direct appeal to the Court of Appeals for the Fifth Circuit, having waived that right through a plea agreement.

Four months after his sentence, on July 11, 1997, the Fifth Circuit decided United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir.1997). In Reyna-Espinosa, the Fifth Circuit held that the statutory definition of "aggravated felony" is not intended to be incorporated into § 2L1.2(b)(2) of the Guidelines, which contains a much more limited definition of "aggravated felon" than the statutory definition in 8 U.S.C. § 1101(a)(43). See id. at 830.

Eight months after Reyna-Espinosa, on March 31, 1998, Movant filed his Motion to Vacate. In his Motion to Vacate, Movant posits two overlapping grounds for relief: (1) that he was denied the right to effective assistance of counsel during plea negotiations because counsel advised him to plead without knowing whether his prior felony conviction was a qualifying aggravated felony under the § 2L1.2(b)(2) 16-level enhancement; and (2) that he was denied the right to effective assistance of counsel during sentencing when counsel failed to object to the imposition of the 16-level enhancement based on the classification of his prior felony conviction of Commercial Burglary as an aggravated felony.

On May 12, 1998, the Government filed a Response, through which it alleges that the Motion to Vacate is time-barred and, in the alternative, that Reyna-Espinosa is inapplicable as precedent in this collateral attack. Moreover, the Government argues that, pursuant to Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990), "[a] new decision generally is not applicable in cases on collateral review unless the decision was dictated by precedent existing at the time the petitioner's conviction became final." The Government further argues that Movant does not demonstrate how he was prejudiced by his attorney's alleged omissions because "any objection to the sentence properly would have been rejected by the sentencing court."

On June 1, 1998, this Court entered an Order Appointing Counsel and Granting Evidentiary Hearing. Therein, the Court appointed attorney Mary Stillinger to represent Movant and stated that an evidentiary hearing would be set in the future.

On October 23, 1998, the Court entered an Order Setting Briefing Schedule, requiring that Movant address the Government's Response. In that same order, the Court noted that additional briefing may obviate the need for an evidentiary hearing.

On November 20, 1998, Movant filed a thorough Reply. Therein, Movant avers that his Motion to Vacate is timely despite having filed it one year and twenty days after his sentence became final for two reasons: (1) the one-year statute of limitations did not start to run under 28 U.S.C. § 2255(4) until Movant discovered the factual basis of his claims on July 11, 1997, when Reyna-Espinosa was decided, and (2) for those same reasons, the statute of limitations should be equitably tolled.

Movant further replies that he does demonstrate prejudice because "under the law and guideline in effect at sentencing," he should have only received a four-level enhancement, under § 2L1.2(b)(1) for having been previously deported for a felony conviction, not a 16-level enhancement under § 2L1.2(b)(2) for having been previously deported for an aggravated felony conviction, which would have resulted in a punishment range of 24-30 months instead of the 63-78 month range actually used at sentencing. He cites a case with virtually identical facts that was previously before this Court as an example of how he was prejudiced, given that the same Federal Public Defender's Office that represented him at sentencing represented one Cesar Pacillas-Santa Cruz ("Pacillas"), and at that time knew to object to the 16-level enhancement.¹

Lastly, Movant addresses the retroactive application of law that the Government contends Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny prohibit: "[Movant] would have been afforded the benefit of Reyna-Espinosa before his conviction became final [had counsel objected]." (Emphasis supplied). In the alternative, Movant also argues that Teague allows the application of the Reyna-Espinosa holding because it did not announce a new rule of law nor refer to procedural rules. In light of Movant's Reply, the Court finds that an evidentiary hearing is not necessary.

Discussion

I. Timeliness

Movant signed his Motion to Vacate on March 30, 1998, and filed it on March 31, 1998. Thus, the specific period of limitation provision governing motions to vacate, set aside or correct sentence applies.² More specifically, that provision states:

A one-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.A. § 2255 (West Supp.2000) (emphasis added).

According to Rule 4(b) of the Federal Rules of Appellate Procedure, Movant's conviction became final on March 20, 1997, ten days after the judgment of conviction was entered since he did not appeal. See Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("By `final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied."); United States v. Hass, 150 F.3d 443, 450 (5th Cir.1998). Given the date his conviction became final, under § 2255(1) it was incumbent upon Movant to file his Motion to Vacate no later than March 20, 1998, one (1) year after his conviction became final.

On July 11, 1997, Movant could have discovered, through the exercise of due diligence, the facts supporting his claims. Movant effectively makes the case that he could not have discovered the factual predicate of his claims presented sooner than July 11, 1997, despite the exercise of due diligence. He specifically alleges that his counsel was ineffective for not contesting the 16-level enhancement which was based on an incorrect interpretation of § 2L1.2(b)(2) of the Guidelines. The Court finds that this particular claim could not have been discovered until the Fifth Circuit interpreted § 2L1.2(b)(2). The Fifth Circuit interpreted § 2L1.2(b)(2) in Reyna-Espinosa, which was decided on July 11, 1997, four months after Movant's conviction became final. One year from that date is July 11, 1998, and the Motion to Vacate, was filed on March 30, 1998. Consequentl...