United States v. Montemayor
| Decision Date | 18 March 2016 |
| Docket Number | CR. No. C-13-844-6,CA. No. C-15-236 |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. MIGUEL MONTEMAYOR, Defendant/Movant. |
| Court | U.S. District Court — Southern District of Texas |
Miguel Montemayor (Montemayor) filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 along with a memorandum in support. D.E. 833, 843. The United States responded and filed a motion to dismiss. D.E. 869. Defense counsel filed his affidavit and Montemayor filed a Reply. D.E. 858, 898. The government responded to new allegations in Montemayor's reply. D.E. 908. The Court denies Montemayor's § 2255 motion because it is untimely and denies him a Certificate of Appealability.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331.
Montemayor was indicted in Count One of a multi-defendant ten-count indictment. Count One charged him and 22 others with conspiracy to possess with intent to distribute more than 1 kilogram of heroin, more than five hundred grams of a mixture containing a detectable amount of methamphetamine and more than 5 kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). D.E. 89. He retained counsel1 and ultimately pleaded guilty to Count One. D.E. 245, 421.
During rearraignment, the Court admonished Montemayor regarding his trial rights, his right to counsel, the elements of the offense, and the maximum punishment.2 The Court reviewed the plea agreement with Montemayor. Montemayor testified that he was pleading guilty voluntarily and that he was not promised a specific sentence. Id., p. 15. Montemayor pleaded guilty to conspiracy to possess with intent to distribute more than 5 kilograms ofcocaine. Id., p. 17. The government outlined the facts related to Montemayor. Montemayor agreed with the government's recitation of the facts. Id., pp. 17-21.
At sentencing, the Court reminded Montemayor about the mandatory minimum sentence and Montemayor testified that he understood. D.E. 862, p. 5. The Court sentenced Montemayor to 120 months imprisonment, five years supervised release and a $100 special assessment. Id. The Court advised Montemayor of his right to appeal by filing a notice within 14 days. Id., p. 8. Judgment was entered on the docket on April 25, 2014. D.E. 583. Montemayor did not appeal.
He filed the present motion on or about May 21, 2015. D.E. 833, pp. 6-8.
Montemayor claims 1) counsel failed to file a notice of appeal after Montemayor and his wife asked him to do so, 2) counsel failed to advise him of the appropriate statute of conviction, 3) limitations should be equitably tolled on the grounds that counsel misled him regarding his appeal, and 4) counsel had him plead guilty to a conspiracy involving 5 kilograms of cocaine when he was only guilty of 3.4 kilograms of cocaine and the difference doubled his sentence. D.E. 833, 834.
In his reply to the government's motion to dismiss for untimeliness, Montemayor raises additional bases for equitable tolling, 1) that he was moved from a federal facility to a county facility from October 2014 through April 2015 and had no access to federal legal materials and 2) when he was returned to BOP custody, his legal papers were withheld until they could be inventoried. D.E. 898, pp. 3-4.
A motion made under § 2255 is subject to a one-year statute of limitations, which, in most cases, begins to run when the judgment becomes final.3 28 U.S.C. § 2255(f). The Fifth Circuit and the Supreme Court have held that a judgment becomes final when the applicable period for seeking review of a final conviction has expired. Clay v. United States, 537 U.S. 522, 525 (2003); United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000) (per curiam).
Montemayor's judgment became final on May 9, 2014, fourteen days after judgment was entered on the docket. See Fed. R. App. P. 4(b)(1). He was required to file his motion to vacate no later than one year from that date, or on or before May 9, 2015. Montemayor's motion was filed (at the earliest) on May 21, 2015, the day on which he placed it in the prisonmail.4 Fed. R. App. P. 4(c). He mailed it eleven days too late unless limitations is equitably tolled.
"The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable." United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (per curiam) (internal quotations omitted). The one-year limitations period of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), as codified in 28 U.S.C. § 2255 is subject to equitable tolling. United States v. Petty, 530 F.3d 361, 364 (5th Cir. 2008). Whether a defendant has shown grounds for equitable tolling is a case-by-case inquiry dependent on the facts and circumstances of each case. Id. (citing Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000)). Such tolling is "reserved for those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Id. A defendant seeking equitable tolling must establish that 1) he pursued habeas relief with reasonable diligence and 2) "extraordinary circumstances" stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010); Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012).
Montemayor claims that he asked his counsel to file a notice of appeal "after sentencing." D.E. 833, p. 4. He argues that he "specifically instructed his counsel to file a notice both through the United States mail and his wife" who "contacted counsel and informed him to appeal." D.E. 834, p. 4. Montemayor provided copies of two letters that he allegedly sent to counsel on June 22, 2014, and on December 14, 2014. Id., pp. 10-11. The July letter references a previous letter to which counsel did not respond and telephone calls by Mrs. Montemayor that counsel did not return. Id., p. 10. Both letters request information as to the status of Montemayor's appeal. Mrs. Montemayor provided an affidavit that states that she tried to leave a message for counsel that her husband wanted to appeal, but was unsuccessful. She states that she also "mailed a letter to the effect that reflects a wish to appeal as my husband requested." Id., p. 9. She does not identify the dates on which she took these actions. Mrs. Montemayor states that she made other telephone calls, "but at no time could I reach the Attorney." Id. Notably, counsel denies Montemayor asked him to file an appeal and states that Montemayor never wrote him or telephoned him. Counsel admits that Mrs. Montemayor called, but her conversations were not related to an appeal. D.E. 858.
In Patterson, the defendant was misled by the district court as to the applicable date that limitations would expire. Equitable tolling was permitted. Patterson, 211 F.3d at 932. But in other cases in which a defendant's counsel missed a deadline, equitable tolling was generally not allowed. See Palacios v. Stephens, 723 F.3d 600, 608 (5th Cir. 2013) (); Manning, 688 F.3d at 185-86 (). One distinction between these cases and Montemayor's is that it was his direct appeal counsel who was allegedly unresponsive to Montemayor's directive to file a notice of appeal. However, during the year after sentencing and after no response from counsel (according to Montemayor), Montemayor did not contact this court or the Fifth Circuit to obtain information regarding his appeal.
The Court need not resolve the factual conflict between counsel and Montemayor's affidavits. The Court finds that Montemyor's failure to contact either this Court or the Fifth Circuit Court of Appeals to check on the status of his appeal constitutes a lack of reasonable diligence such that equitable tolling is not available to Montemayor on that basis.
Montemayor alleges that he was transferred to an unidentified county detention facility after federal sentencing where he claims he did not have access to a law library with federal materials or to assistance from other inmates or law library staff. D.E. 898. His reply is unsworn and his attached affidavit does not address this allegation. See D.E. 898-1.
The record contradicts Montemayor's assertion in part. The return of judgment states that Montemayor was delivered on May 22, 2014, to USP MCR in Pine Knot, Kentucky. D.E. 658. According to the BOP's website, Pine Knot houses over 1500 inmates and has alaw library with access to federal legal materials. The McCreary Admissions & Orientation Handbook describes the available materials.5
Furthermore, Montemayor filed a motion with this Court that requests the Court to correct his PSR. That motion included citation to authority and was signed on May 5, 2015, before limitations expired to file Montemayor's § 2255 motion. See D.E. 893. That motion further demonstrates that Montemayor had access to legal assistance on or before the due date for his § 2255 motion.
Montemayor's request for equitable tolling is denied. Because Montemayor's motion is untimely, this Court may not address the merits of his claims.
An appeal may not be taken to the court of appeals from a final order in a...
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