United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE.
the court is a Motion to Vacate, Set Aside, or Correct
Sentence filed pursuant to 28 U.S.C. § 2255 by defendant
John Harold Garza. Doc. 214. This matter has been referred to
the undersigned in accordance with the provisions of 28
U.S.C. § 636. For the reasons stated below, IT
IS RECOMMENDED that the motion be DISMISSED
WITH PREJUDICE as untimely under
to a plea agreement, Garza was convicted in this court of one
count of conspiracy to possess with intent to distribute and
to distribute marijuana, a violation of 21 U.S.C. § 846.
Docs. 126, 128. He was then sentenced on August 11, 2015, by
judgment entered two days later, to an 82-month term of
imprisonment. Docs. 173, 175. He did not appeal his
conviction or sentence. Garza now seeks relief in this court
through a § 2255 motion to vacate, filed on May 30,
2017. Doc. 214. There he claims (1) that he
received ineffective assistance of trial counsel, (2) that
his right to due process was violated when the magistrate
judge assigned to his case failed to recuse himself, and (3)
that this court lacked jurisdiction over his case.
conviction and exhaustion or waiver of the right to appeal,
the court presumes that a defendant “stands fairly and
finally convicted.” United States v. Shaid,
937 F.2d 228, 231-32 (5th Cir. 1991). Relief under §
2255 “is reserved for transgressions of constitutional
rights and for a narrow range of injuries that could not have
been raised on direct appeal and would, if condoned, result
in a complete miscarriage of justice.” United
States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
A motion filed under § 2255 is subject to a one-year
limitations period, running from the latest of the following
dates: (1) when the judgment became final; (2) when a
government-created impediment to filing the motion was
removed; (3) when the United States Supreme Court initially
recognized and made retroactively applicable the legal
predicate for the motion; or (4) when the petitioner could
have discovered, through due diligence, the factual predicate
for the motion. 28 U.S.C. § 2255(f). A judgment becomes
final, under this section, when the applicable period for
seeking direct review of a conviction has expired. United
States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008).
The limitations period is not jurisdictional and is subject
to equitable tolling. Parra-Martinez v. United
States, 2015 WL 9244611, at *3 (W.D. Tex. Dec. 16, 2015)
(citing Holland v. Florida, 560 U.S. 631, 645-46
(2010)). Equitable tolling is only appropriate, however, in
“rare and exceptional circumstances” and
“is not intended for those who sleep on their
rights.” Id. (quoting Cousin v.
Lensing, 310 F.3d 843, 848 (5th Cir. 2002); Fisher
v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999)).
conviction and sentence became final on August 27, 2015,
fourteen days after entry of judgment, when his time for
filing a notice of appeal expired. Plascencia, 537
F.3d at 388 (5th Cir. 2008); see Fed. R. App. P.
4(b). Under § 2255(f)(1), he was therefore required to
file his § 2255 motion by August 27, 2016, but did not
do so until over nine months later. See 28 U.S.C.
§ 2255(f)(1). He provides no basis for equitable tolling
or any later start date to the limitations period. However,
he does rely in part on Buck v. Davis, __ U.S. __,
137 S.Ct. 759 (2017), which was decided on February 22, 2017.
The court analyzes the case to see if it would provide for a
later start date to the statute of limitations under §
2255(f)(3) as initial recognition of a new, retroactively
applicable constitutional right.
Garza's challenge, Buck involved discussion of
the long-recognized right to effective assistance of counsel.
Buck relates to the retroactive applicability of the
rule developed in Martinez v. Ryan, 566 U.S. 1
(2012), and Trevino v. Thaler, 569 U.S. 413 (2013) -
that habeas review of a state conviction could be preserved
for an ineffective assistance of counsel claim defaulted in a
state post-conviction proceeding if state postconviction
counsel was constitutionally ineffective in failing to raise
it. 137 S.Ct. at 780. The Court, however, determined that
that the state had waived its late-asserted challenge to the
retroactive applicability of Martinez and
Thaler. Id. Accordingly, Buck does
not stand for any new rule of constitutional law which would
be retroactively applicable to this case, and the petition is
untimely under § 2255(f)(1).
reasons set forth above, IT IS RECOMMENDED
that the Motion to Vacate [doc. 214] be DISMISSED
WITH PREJUDICE as ...