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United States v. Garza

United States District Court, W.D. Louisiana, Lake Charles Division

November 15, 2018


          DRELL JUDGE.



         Before 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 § 2255(f).



         Pursuant 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.[1] 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. Id.


         Law and Analysis

         Following 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)).

         Garza's 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.

         Like 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).[2]



         For the reasons set forth above, IT IS RECOMMENDED that the Motion to Vacate [doc. 214] be DISMISSED WITH PREJUDICE as ...

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