United States District Court, W.D. Louisiana
REPORT AND RECOMMENDATION
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE.
before the undersigned for Report and Recommendation is the
Motion to Correct Illegal Sentence filed by petitioner, Mario
Duran, pursuant to 28 U.S.C. § 2255. [rec. doc. 71]. The
Government has filed a Memorandum in Opposition. [rec. doc.
76]. Petitioner has not filed a Reply. Petitioner is
incarcerated at the Federal Correctional Institution in
Butner, North Carolina.
instant motion to vacate, petitioner asserts that he received
ineffective assistance of counsel because his attorney,
Lester J. Gauthier, Jr., failed to file a notice of appeal on
his behalf. For the following reasons, the undersigned
recommends that Mario Duran's § 2255 Motion to
Correct Illegal Sentence [rec. doc. 71] be DENIED AND
DISMISSED WITH PREJUDICE.
4, 2015, Duran plead guilty to one count of transportation of
child pornography, in violation of 18 U.S.C. §
2252A(a)(1), Count 2 of a two count indictment. [rec. docs.
45 and 47]. Petitioner appeared for sentencing on October 28,
2015, at which time petitioner was sentenced to 120 months
imprisonment. [rec. docs. 62 and 65]. The Judgment of
conviction was entered on this Court's docket on November
did not directly appeal to the United States Fifth Circuit
Court of Appeal. Thus, petitioner's Judgment of
conviction became final 14 days later when no timely notice
of appeal was filed, that is, on November 17, 2015.
asserts that he received ineffective assistance of counsel
because his attorney, Lester J. Gauthier, Jr., failed to file
a notice of appeal on his behalf. In support, petitioner
alleges that "a couple days after sentencing" he
called Mr. Gauthier and instructed him to initiate a direct
appeal, to which counsel responded that he would file a
notice of appeal. However, petitioner "later
discovered" that counsel failed to do so.
of the Instant Motion Title 28 U.S.C. § 2255
provides a one-year statute of limitations for the filing of
motions pursuant to § 2255. This limitation period
generally runs from the date that the conviction becomes
final. 28 U.S.C. § 2255(f)(1). Petitioner's
conviction became final on November 17, 2015, 14 days after
his Judgment of conviction was entered on this Court's
docket. FRAP 4(b)(1)(A)(i). See also Clay v. United
States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d
88 (2003); Sup. Ct. R. 13(1) and 13(3); United States v.
Plascencia, 537 F.3d 385, 388 (5th Cir.
2008); United States v. Gamble, 208 F.3d 536, 536
(5th Cir. 2000) (per curiam). Petitioner
therefore had one year, or until November 17, 2016 to file
his § 2255 Motion in this Court.
instant Motion was signed and verified by petitioner on
November 8, 2016, before the expiration of the one year
limitation period, but not postmarked until November 21,
2016, after the one year limitation period expired. The
government therefore argues that the instant motion has been
untimely filed. Petitioner has failed to provide any response
to the government's argument.
the "mailbox rule", a pleading is deemed
"filed" as of the day it is placed in the
prison's mailing system. Houston v. Lack, 487
U.S. 266, 276 (1988); Spotville v. Cain, 149 F.3d
374, 376 (5th Cir. 1998). To be timely, the
pleading must be deposited in the institution's internal
mailing system on or before the last day for filing and the
prisoner must use the institution's mailing
system. See Rule 3(d), Rules Governing
Section 2255 Proceedings in the United States District
Courts. It is the defendant's burden to make a
preliminary showing that he is entitled to the benefit of the
"mailbox rule." See United States v. Holt,
650 Fed.Appx. 170, 170 (5th Cir. 2016) citing
Medley v. Thaler, 660 F.3d 833, 840 (5th Cir.
2011); United States v. Williams, 492 Fed.Appx. 486,
487 (5th Cir. 2012) citing Medley, supra.
Timely filing may be shown by a declaration in compliance
with 28 U.S.C. § 1746 or by notarized statement, either
of which must set forth the date of deposit into the
institution's mail system, and that first-class postage
was prepaid. See Rule 3(d), Rules Governing Section
2255 Proceedings in the United States District Courts.
Petitioner has provided nothing to this Court to satisfy his
burden. Accordingly, petitioner's motion cannot be
considered timely under the period established by 28 U.S.C.
government further argues that § 2255(f)(4) is not
applicable. That section extends the time for filing beyond
the general rule set forth in § 2255(f)(1) in cases
where the petitioner's claim relies on the newly
discovered facts which could not have been discovered through
the exercise of due diligence. The government correctly
argues that petitioner does not allege when he discovered
that Gauthier did not did not file a notice of appeal on his
behalf, and more importantly, does not argue why, through the
exercise of due diligence, he did not discover his
counsel's alleged failure to act earlier. Clearly, by
virtue of Gauthier's November 2, 2015 letter, petitioner
knew that a notice of appeal had to be filed within 14 days
of the entry of judgment. Yet petitioner apparently took no
timely action to discover if a notice of appeal had in fact
been filed on his behalf. Furthermore, petitioner waited
until nearly one year after the expiration of the limitation
period for the filing of a timely notice of appeal to present
his claim to this Court. Under these circumstances, the Court
cannot find that petitioner acted with due diligence, thereby
triggering application of § 2255(f)(4).
petitioner is not entitled to equitable tolling. The Fifth
Circuit has held that the statute of limitations in §
2255 may be equitably tolled in “rare and exceptional
circumstances.” United States v. Patterson,
211 F.3d 927, 930 (5thCir. 2000) quoting Davis
v. Johnson, 158 F.3d 806, 811 (5th Cir.
1998). The Supreme Court, when assuming without deciding that
equitable tolling is available, articulated that to be
entitled to equitable tolling, the petitioner must show
“that he has been pursuing his rights diligently”
and “that some extraordinary circumstance stood in his
way and prevented timely filing.” Lawrence v.
Florida, 549 U.S. 327, 127 S.Ct. 1079, 1085 (2007);
See also Pace v. DiGuglielmo, 544 U.S. 408, 418, 125
S.Ct. 1807, 161 L.Ed.2d 669 (2005). The burden of proof
concerning equitable tolling is on the petitioner.
Phillips v. Donnelly, 216 F.3d 508, 511
(5th Cir. 2000).
has not met his burden of showing that rare, exceptional or
extraordinary circumstances beyond his control prevented him
from timely filing his § 2255 Motion, nor does the
record support equitable tolling of the statute of
limitations in the instant case. The circumstances faced by
petitioner were not extraordinary so as to provide a basis
for equitable tolling. Indeed, claims of ineffective
assistance of counsel for failing to file a notice of appeal
are common and are routinely made by pro se
petitioners. The record does not demonstrate that petitioner
pursued his rights diligently. Petitioner's status as a
pro se litigant is alone insufficient to equitably
toll the limitation period and does not relieve petitioner
from following applicable procedural rules. United States
v. Petty, 530 F.3d, 361, 365-366(5th Cir. 2008)
citing Lookingbill v. Cockrell, 293 F.3d 256, 264 n.
14 (5th Cir. 2002). Additionally, the lack of
legal training, ignorance of ...